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IS NETWORK NEUTRALITY PART OF CUSTOMARY INTERNATIONAL LAW?
Faculty of Politics, Philosophy and Religion LANCASTER UNIVERSITY
Wafa’ Nimri Degree: MA in Diplomacy and International Law
Student ID: (31102106) Word Count: (20,108)
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Table of Contents
IS NETWORK NEUTRALITY PART OF CUSTOMARY INTERNATIONAL LAW? .................................................................................. ERROR! BOOKMARK NOT DEFINED.
IS NETWORK NEUTRALITY PART OF CUSTOMARY INTERNATIONAL LAW? .................................................................................................................................................. 7 INTRODUCTION .............................................................................................................................. 7
CHAPTER 1: THE NET NEUTRALITY FRAMEWORK ............................................ 12 1.1 INTRODUCTION ................................................................................................................. 12 1.2 DEFINITION ......................................................................................................................... 15 1.3 TECHNICAL PERSPECTIVE: END–TO-‐END (E2E) V. QUALITY-‐OF-‐SERVICE (QOS) ALGORITHMS ...................................................................................................................................... 17 1.4 THE ECONOMIC PERSPECTIVE: THE PROS AND CONS OF PAY FOR PLAY 18 1.5 THE REGULATORY PERSPECTIVE ............................................................................ 22 1.5.1 Regulatory Approaches To Network Neutrality .................................................. 25 1.5.2 Regulatory Practices in Network Neutrality ......................................................... 27
1.6 NETWORK NEUTRALITY AND COMMON CARRIER ............................................ 31 1.7 THE POLITICAL PERSPECTIVE: INTERNET GOVERNANCE & NETWORK NEUTRALITY .................................................................................................................................. 35 1.8 THE SOCIAL PERSPECTIVE: WHY NETWORK NEUTRALITY IS IMPORTANT? ................................................................................................................................. 39 1.9 CONCLUSION ....................................................................................................................... 42
CHAPTER 2: STATE PRACTICE ................................................................................... 44 2.1 INTRODUCTION ................................................................................................................ 44 2.2 NATIONAL LEGISLATION .............................................................................................. 45 2.1.1 The European Union Model ...................................................................................... 45 2.1.2 The US Model .................................................................................................................. 47 2.1.3 The UK Model ................................................................................................................... 48 2.1.4 The Japanese Model ....................................................................................................... 49 2.1.5 The Brazilian Model ...................................................................................................... 50
2.2 JUDICIAL DECISIONS ....................................................................................................... 51 2.2.3 Madison River Communications v Federal Communications Commission (FCC) 51 2.2.4 Comcast v Federal Communications Commission (FCC) ............................... 51 2.2.5 UZUN v Germany ........................................................................................................... 52 2.2.6 Odex Ptd, Ltd v Pacific Internet Ltd ....................................................................... 53 2.2.7 K.U. v Finland ................................................................................................................... 54
2.3 INTERNATIONAL DECLARATIONS ............................................................................ 54 2.4 CONCLUSION ....................................................................................................................... 57
CHAPTER 3: NET NEUTRALITY AND HUMAN RIGHTS ....................................... 59
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3.1 INTRODUCTION ................................................................................................................. 59 3.2 IS THERE A RIGHT TO NET NEUTRALITY? ............................................................. 60 3.3 THE LINK BETWEEN NET NEUTRALITY, DEVELOPMENT AND HUMAN RIGHTS .............................................................................................................................................. 64 3.4 DISCRIMINATION AT THE CONTENT AND PHYSICAL LAYERS ..................... 67 3.5 THE NEW ROLES OF INTERNET INTERMEDIARIES ........................................... 71 3.6 THE IMPOSITION OF LIABILITY FOR THIRD PARTY CONTENT ................... 73 3.6 CONCLUSION ...................................................................................................................... 75
CHAPTER 4: NET NEUTRALITY IN TRADE AND INVESTMENT LAW .............. 77 4.1 INTRODUCTION ................................................................................................................. 77 4.2 ANALOGIES OF NET NEUTRALITY TO STANDARDS OF TREATMENT OF PROTECTION ................................................................................................................................. 78 4.2.1 The Fair and Equitable Treatment Standard (FET): ......................................... 78 4.2.2 The Minimum Standard of Treatment (MST) ....................................................... 82 4.2.3 The National Treatment Standard (NT) ................................................................. 84 4.2.4 The Most-‐Favored Nation Standard (MFN) ........................................................... 85 4.2.5 The Normative Underpinnings of Network Neutrality ..................................... 87
CONCLUSION .................................................................................................................................. 90
BIBLIOGRAPHY ................................................... ERROR! BOOKMARK NOT DEFINED.
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ACRONYMS
NN Network Neutrality
E2E End-to-End
DPI Deep Packet Inspection Technologies
ISP Internet Service Provider
NGN Next Generation Networks
BB Broadband
P2P Peer-to-Peer
NPRM Notice of Proposed Rulemaking
FCC Federal Communications Commission
UNICTRAL United Nations Commission on International Trade Law
UNICTAD United Nations Conference on Trade and Development
UNESCO United Nations Educational, Scientific and Cultural Organization.
UNDP United Nations Development Program
MDG Millennium Development Goals
OECD Organization for Economic Cooperation and Development
ITU International Telecommunications Union
EU European Union
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BIT Bilateral Investment Treaties
ICSID International Center for Settlement of International Disputes
WTO World Trade Organization
WIPO World Intellectual Property Organization
IPR Intellectual Property Rights
FET Fair and Equitable Treatment
NT National Treatment
MST Minimum Standard of Treatment
GATT General Agreement on Tariff and Trade
GATS General Agreement on Trade in Services
FCN Friendship and Commerce and Navigation treaties
ECtHR European Court for Human Rights
VoIP Voice over Internet Protocol
PICS Internet Content Selection
FRAND Fair, Reasonable and Non-Discriminatory
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AKNOWLEDGEMENTS
Allow me to extend my deep gratitude and appreciation to Dr. Christopher May,
whose views and understanding of the ICT industry provided valuable insight and
guidance, without which it would have been difficult to attain the required
understanding. Many thanks also go out to Dr. Mark Lacy for his motivation and Mrs.
Katherine Young for always being there whenever we needed. Dr. Tom Mill and Dr.
Basil Germond for teaching us the arts and crafts of negotiation and politics.
A special ‘thank you’ also goes out to all my professors in the legal department: Dr.
Sophia Kopela for her dedication and commitment in teaching Public International
Law and ways of argument, Dr. Valentina Vadi for her structured guidance in
International Investment Law, Dr. Amanda Cahill-Ripely for helping us to strive for
perfection, and Dr. Sigrun Skogly for her support to the legal program. I would also
like to extend special thanks to Mrs. Eileen Jones for her patience and support
throughout.
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IS NETWORK NEUTRALITY PART OF CUSTOMARY
INTERNATIONAL LAW?
INTRODUCTION
There is nothing more exciting in today’s political economy and international law
than the electronic communications industry, that is generating much controversy
over the principle of Network Neutrality (NN): its normative content, future
implications, public service value and whether it is a binding principle ordained by
the “End-to-End algorithm (E2E).”1 While, there is no precise definition of Network
Neutrality, as it is generally understood “to mean different things to different
people,”2 this essay will postulate that NN is an evolving norm that may reflect
customary law due to reasoned shifts in the conception and development of norms
under customary international law. 3 It will argue that the norm presupposes a pattern
of development that is rationally and strategically driven by the U.S to govern and
advance geopolitical and economic interests in cyberspace. By analogizing the norm
to standards of treatment of protection under several international legal instruments,
the results posit that a customary norm may be evolving such as to ensure compliance
by countries the world over with global standards of justice and good governance
1 End-to-End principle of the Internet’s Architecture and Operation Protocol (TCP/IP) directs traffic from one end to the other without interruption based on (TCP/IP) technologies. It is based on the principle of packet equality in addition to intelligence residing at the edge of the network as opposed to the core. 2 Nicholas Economides and Tag Joacim, Network Neutrality and Network Management Regulation: Quality of Service, Price Discrimination, exclusive contracts (NET Institute, 2011). p.3 3 Steven Hetcher, Norms in a Wired World, Cambridge Studies in Philosophy and Law (NY: Cambridge University Press, 2004). p. 5
8
principles governing transactions online. The fact that debates on NN coincide with
recent developments to globalize Internet Governance for Assigned Names and
Numbers (ICANN) in addition to the U.S relinquishing its control of the organization
suggest that NN is conforming to an institutionalist theory of international relations
that treats the Internet as an international regime of collective action problems
between rational states.4 In considering that customary law can no longer play a role
in maintaining a safe social order due to accelerated developments in technologies
that may render customary law incapable of evolving in sync with technological
developments, it is only natural to abandon informal and traditional solutions in favor
of more rationalized and controlled means of affecting social order.5 This may be
achieved through the doctrine of NN. Recent developments in Bilateral Investment
treaties and norms under international investment law, together with the role they play
in contemporary international relations, as the substitute of custom,6 signify that NN
is heading in that direction: a normative norm where consensus is shared, iterated and
agreed upon through the process of treatification. This is particularly true when
considering D’Amatoe’s view of custom as a matter of fact, degree and value.
In this regard, it is apposite to explicate the following concepts in NN: “users’ equal
access to lawful content, services, applications and devices of their choice, without
discrimination,”7 and “treating Internet traffic equally irrespective of whether it is
4 Timothy S Wu, "Cyberspace Sovereignty: The Internet and The International System," Harvard Journal of Law and Technology 3, no. 10 (1997). p. 657 5 Hetcher, Norms in a Wired World. p. 1-5 6 Patrick J Kelly, "The Twilight of Customary International Law," Virginia Journal of International Law, no. 2 (2000). p. 449 7 Council of Europe, "Declaration of the Committee of Ministers on Network Neutrality, para 4," (Europe: Council of Europe, 2010). para. 4: Users should have the greatest possible access to Internet-based content, applications and services of their choice, whether or not they are offered free of charge, using suitable devices of their choice. Such a general principle commonly referred to as Network Neutrality, should apply irrespective of infrastructure, or the Network used for Internet connectivity. Access to infrastructure is a prerequisite to the realization of this objective.
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heavy traffic or delay sensitive.”8 These definitions reflect a paradigm shift in how the
Internet is or should be understood. On the hand, as being an innovation platform
subject to public control, on the other, as a commercial platform subject to private
control.9 The second definition implies treating Internet traffic equally, which is
currently not the case. Deep Packet Inspection (DPIs) technologies are enabling the
abuse or misuse of Internet network traffic by carriers to monitor, manage and
monetize traffic as well as deploy and commercialize surveillance technologies in the
name of national security, or under its guise to control power and cybercrime. The
view of the Internet as a commodity for commercialization is giving way to
arguments relating to the treatment of like traffic alike in order to allow for some form
of justified discrimination, 10 on grounds of Quality-of-Service (QoS) 11 and
reasonable network management.12
In previously routing traffic from one end of the network to the other without
interruption, the Internet created patterns of end users’ behavior and practice online
that is reflective of custom. “Ordinary behavior is simply customary behavior.”13
Equal and unfettered access to the Internet scholars claim is the bedrock of
innovation, democratization, free speech and communication. As such, imagined or
perceived universal interest and consent of users’ rights espoused by the principle
8 Kai Zhu, "Bringing Neutrality to Network Neutrality," Berkeley Technology Law Journal 22, no. 1 (2007). p. 615 9 Fenwick Mckelvey, "Ends and Ways: The Algorithmic Politics of Network Neutrality," Global Media Journal (Canadian Edition) 3, no. 1 (2010). p. 53-55 10 Barbara Schewick Van, Network Neutrality and Quality of Service: What a Non-discrimination Rule Should Look Like (Centre for Internet Society (CIS), 2012). p. xii 11 It is an algorithm that allows for the tiering of traffic by carriers to provide enhanced and value added services, but sometime to negatively block, degrade and slow down traffic. It implies the treatment of packets/Internet traffic differently. 12 Reasonable Network management consists of reasonable practices employed by a provider of broadband Internet access to: reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns, address traffic that is unwanted by users or harmful, prevent the transfer of unlawful content, or prevent the unlawful transfer of content and other reasonable network management practices. 13 Hetcher, Norms in a Wired World. p. 6
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have emerged into standardized methods of working widely accepted, iterated and
practiced. While the Internet is not a deregulated and open space as many are led to
believe, this essay will build on arguments advanced by Kai that:
“The Internet is not an absolute neutral space, traffic prioritization can coexist with and
encourage innovation and some minimal regulation is necessary to prevent market power
abuses and discrimination in the Internet service market.” 14
It will then examine the framework of NN, which will cover the content of the norm
and underlying social, economic and political factors driving the debates forward in
chapter one. Chapter two will proceed to match NN against the requirements and
criteria of customary international law: consent and consensus. This will be achieved
by highlighting State practice and evidence of State practice perceived as law. In
chapter three, it will discuss the moral motivations and the necessity of the norm
opinio iuris sive necessitatis from a human rights perspective and a commercial
perspective in chapter four. Finally, it will conclude by stating that NN, if rooted in
the algorithm of quality-of-service (QoS), may be an evolving customary norm/rule
that is reflective of strategic, evidentiary and sanction-driven norm,15 from which
standards for permissible and prohibited behavior may be identified.
This essay, however, will not address issues of discrimination at the level of access to
the network infrastructure and issues relating to network expropriation, eminent
domain or the security aspects of networks as an area of national sovereignty. It will
not discuss issues relating to the extraterritorial jurisdiction of NN, albeit it would add
value to the normative content of the norm as an international principle, nor will it
14 Kai Zhu, "Bringing Neutrality to Network Neutrality," Berkely Technology Law Journal 22, no. 11 (2014).p. 615 15 Hetcher, Norms in a Wired World. p. 1-5 According to Hatcher: norms are patterns of rationally governed behavior initiated and maintained in groups by acts of conformity.
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address the international disputes settlement mechanisms as they relate to NN. For
example: the World Intellectual Property Organization (WIPO) partakes in the dispute
resolution mechanism alongside ICANN to resolve conflicts related to Internet
Protocol (IP) addresses because they are treated as trademarks. By the same token,
disputes of human rights violations committed online are considered under human
rights laws. Other disputes may fall under investment law and the International Center
for Settlement of International Disputes (ICSID) or under trade law and the United
Nations Commission on International Trade Law (UNCITRAL) or the World Trade
Organization (WTO) dispute settlement body. So, this essay will not delve into the
dispute settlement mechanism of Network Neutrality. And, it will not discuss in-
depth Internet regulation vis-à-vis Internet Traffic Management, usage based billing,
consumer protection and safe harbor provisions, or the requirements of overriding
public interest. For the most part, it will touch on the issues briefly to meet the object
and purpose of this essay, which is to examine if NN is reflective of customary
international law.
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CHAPTER 1: THE NET NEUTRALITY FRAMEWORK
1.1 INTRODUCTION
There is nothing more exciting in today’s political economy and international law
than the electronic communications industry, that is generating much controversy
over the principle of Network Neutrality (NN): its normative content, future
implications, public service value and whether it is a binding principle ordained by
the “End-to-End algorithm (E2E).” 16 While, there is no precise definition of Net
Neutrality, as it is generally understood “to mean different things to different
people,”17 the purpose of this chapter will be to highlight the underlying definitions
and myriad debates surrounding the doctrine and in particular focus on two
definitions of Network Neutrality: users’ equal access to lawful content, services,
applications and devices of their choice, without discrimination,18 and “treating
Internet traffic equally irrespective of whether it is heavy traffic or delay sensitive.”19
The first definition is self-explanatory, while the second implies the treatment of
Internet traffic equally, which is currently not the case. Deep Packet Inspection (DPIs)
technologies are enabling the abuse or misuse of Internet network traffic by Internet
16 End-to-End principle of the Internet’s Architecture and Operation Protocol (TCP/IP) directs traffic from one end to the other without interruption based on (TCP/IP) technologies. It is based on the principle of packet equality in addition to intelligence residing at the edge of the network as opposed to the core. 17 Economides and Joacim, Network Neutrality and Network Management Regulation: Quality of Service, Price Discrimination, exclusive contracts. p.3 18 Europe, "Declaration of the Committee of Ministers on Network Neutrality, para 4." para. 4: Users should have the greatest possible access to Internet-based content, applications and services of their choice, whether or not they are offered free of charge, using suitable devices of their choice. Such a general principle commonly referred to as Network Neutrality, should apply irrespective of infrastructure, or the Network used for Internet connectivity. Access to infrastructure is a prerequisite to the realization of this objective. 19 Zhu, "Bringing Neutrality to Network Neutrality." p. 615
13
Service Providers (ISPs) to monitor, manage and monetize traffic as well as deploy
and commercialize surveillance technologies in the name of national security, or
under its guise to control power and cybercrime. These are all undermining the
neutral, decentralized, open and non-discriminatory character of the Internet, as we
know it.
The crux of the problem according to Christopher Marsden is that NN reflects: a
concern “to pay more for more, or the same for less.”20 Another Brazilian lawyer
stated that: “without net neutrality, the Internet would look more like cable T.V,
where providers can offer different service packages.”21 Timothy Wu, by contrast,
argued that: NN focuses on two distinct themes: “forbidden and permissible grounds
for discrimination in broadband usage restrictions.”22 And Sidak postulated that NN is
about “how to finance the maintenance and construction of broadband networks in a
two sided market in which senders and receivers have additive demand for the
delivery of a given piece of information.”23 Moreover, the European Commission
stated that: NN is important to safeguard Internet freedoms.24
The recent agreement between Netflix, a digital broadcasting company, and Comcast,
a broadband provider company, that involved the payment of a premium price for
obtaining a fast lane on which to transmit Netflix broadcasting services to Comcast
subscribers without interruption is fueling debates on the implications of NN
violations in the future. While the debate on NN initially originated in the United 20 Christopher T. Marsden, Net Neutrality: Towards a Co-Regulatory Solution (London and New York: Bloomsbury, 2010). p. 55 21 Al Jazeera and Reuters, "Net Neutrality Wins in Brazil's 'Internet Constitution'," (2014).<http://www.america.aljazeera.com/2014/3/26/brazil-internet-constitution > accessed June 15, 2014 22 Timothy Wu, "Network Neutrality, Broadband discrimination," Journal of Telecommunications and Hight Technology Law 2(2003). p. 168 23 J. Gregory Sidak, "A Consumer Welfare Approach To Network Neutrality Regulation of the Internet," Journal of Competition Law and Economics 2, no. 3 (2006). P. 350 24 Commission Declaration on Net Neutrality, "Directive 2009/140/EC European Commission Declaration on Net Neutrality," (EU: European Commission, 2009).
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States in response to the “Pay For Play”25 model, it later galvanized international
attention due to two reasons: The location of the organization of Internet Governance
for Assigned Names and Numbers (ICANN) in the United States Department of
Commerce, in which it was seen to be under its control,26 and therefore, not
necessarily neutral in its decisions. Secondly, ICANN’s assigned role in gauging the
moral valuation of a domain name is seen to be jeopardizing the organization’s
neutral and technical role within a supposedly neutral environment. But, more
importantly it is imbuing it with a legislative character. 27 Hence, the multi-
dimensional and multi-faceted aspects of NN: the economic, political, normative and
social are bringing into light its future public service value as a platform for
innovation, democratization, consumer welfare, economic progress and growth.
This chapter will start by illustrating the definition of the concept in section (1.2) as
well as its technical underpinnings in section (1.3). It will then move on to elaborate
on the economic, political and social perspectives of NN in sections (1.4), (1.5) and
(1.6) and the implications of network neutrality regulations in sections (1.4.1) and
(1.4.2) and (1.4.3) and the relation of Network Neutrality to common carrier in
section (1.4.4).
25 ISPs to charge content providers a fee in exchange for better QoS on their networks. 26 Brendan Greeley, "The U.S Gives Up Its Control of Free Speech Internet," Bloomberg Businessweek (Technology), http://www.businessweek.com/articles/2014-03-17/the-u-dot-s-dot-ends-control-of-icann-gives-up-backing-of-the-free-speech-internet. 27 Milton Mueller, "Net Neutrality as a Global Principle for Internet Governance," Internet Governance Project (IGP) (2007).p. 11-14
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1.2 DEFINITION
The principle of NN though sometimes used interchangeably with the term open
Internet lies at the heart of the Internet’s technical and operational architecture.28 Tim
Wu, who first coined the term in 2003, equated the principle to “an internet that does
not favor one application over others.”29 In 2005, it took on a “normative and political
meaning” 30 of bandwidth regulation and “access to the Internet’s resources.” 31
Werbach, Lehr and others have attempted to redefine NN in terms of interconnection
and other inter-carrier requirements, rather than end-user centered policy.32 But, in
2010 the Internet Society noted in its report that Network Neutrality is “a broadly and
ill-defined term encompassing a broad range of policy objectives including: Freedom
of expression, user choice, and non-discrimination as well as business issues,
including network traffic management, pricing and overall business models.”33 Others
defined it as the provision of lawful content and applications regardless of the source,
content type or destination, or the “non-discriminatory, universal access to Internet
resources.” 34 Nonetheless, the best definition was put forward by Christopher
Marsden, in which he viewed Network Neutrality as two distinct sub-principles:
“positive neutrality, which looks at the prospect of charging more for better access to
28 Economides and Joacim, Network Neutrality and Network Management Regulation: Quality of Service, Price Discrimination, exclusive contracts. p. 8 (on the difference between open internet and NN Joacim argues that NN and the term open Internet denote to two sets of different policy frameworks) 29 Wu, "Network Neutrality, Broadband discrimination." p. 145 (This also includes access to illegal content) 30 Alison Powell and Alissa Cooper, "Net Neutrality Discourse: Comparing advocacy and Regulatory Arguments in the United States and the United Kingdom," The Information Society 27, no. 5 (2013). p.2 31 Mueller, "Net Neutrality as a Global Principle for Internet Governance." p. 3 32 Kevin Werbach, "A Layers Model for Internet Policy," Journal on Telecommunications & High Technology Law 1(2002). p. 37 33 Internet Society International Toolkit, "Tools for Unravelling the Net Neutrality/Open Internet Working Debate," (2010). p. 2 34 Mueller, "Net Neutrality as a Global Principle for Internet Governance." p. 5
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Next Generation Networks (NGN), and negative neutrality, which concerns throttling,
degrading or blocking users’ access to Internet content.” 35 This definition separates
two distinct set of activities that an Internet Service Provider (ISP) could engage in:”36
Positive or negative, the former is garnering acceptance, while the other is not.
Other scholars noted that its conceptual definition from a technical and practical
perspective is described as “complicated,” 37 with various legal, political and
economic nuances. It was also described as “vague”38 or “nebulous,”39 even “a naked
commitment,”40 due to the diverse elaborations put forward on the definition. In
contemporary debates, the principle is characterized as a “hypothetical problem,
which may or may not emerge in the future.”41 According to McCurry and Wolf, the
principle is by far “speculative,”42 and others noted that it’s “hogwash,”43 a “mere
theory,”44 or “a solution in search of a problem.”45 Today, however, the term is
understood to mean users’ equal access to lawful content on the Internet, services,
applications and devices of their choice, without discrimination.
35 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 211 36 Ibid. 37 Powell and Cooper, "Net Neutrality Discourse: Comparing advocacy and Regulatory Arguments in the United States and the United Kingdom." p. 16 38 Ibid. 39 Ibid. 40 Ibid. 41 Ibid. 42 Ibid. 43 Ibid. 44 Ibid. 45 Federal Communications Commission (FCC), "Notice of Proposed Rule making In the Matter of Preserving the Open Internet," (USA: FCC, 2009). p. 25
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1.3 TECHNICAL PERSPECTIVE: End–to-End (E2E) V. Quality-
of-Service (QoS) Algorithms
The End-to-End (e2e) algorithm that is underlying the Internet’s design architecture
routes packets from one end of the network to the other without interference or
modification. It is based on best effort transmission that operates on (TCP/IP)
protocols. 46 The idea behind it is that intelligence resides at the edges of the network
with the individual as apposed to the core.47 Today, technologies are becoming faster,
smarter and more invasive. As such, the E2E algorithm may no longer support and
sustain their operation in light of limited broadband capacity, convergence of Internet
technologies and the rise of cybercrime. Political concerns over Internet security and
integrity are also exasperating the problem of E2E. As a dumb algorithm, it is
incapable of detecting spam or harmful content. Instead, a new logic is embedded in
new code to allow for the preferential treatment of packets by carriers on their
networks in order to prevent congestion, streamline networks and provide value-
added services.48 It is more intelligent than the E2E and is called Quality-of-Service
(QoS).
Fenwick argues that: “these two algorithms treat different modalities of Internet
communication differently,” 49 the former does not allow for preferential treatment of
packets, whilst the latter one does. Historically, providers of neutral transparent
conduits did not have to monitor the content they carried. Today, the situation is
46 Christopher S. Yoo, "Beyond Network Neutrality," Harvard Journal of Law & Technology 19, no. 1 (2005). p. 3 47 Darren Read, "Net Neutrality and the EU electronic communications regulatory framework," International Journal of Law and Information Technology 20, no. 1 (2012). p. 49 48 Mckelvey, "Ends and Ways: The Algorithmic Politics of Network Neutrality." p. 53 49 Ibid. p. 51
18
different with more ISPs having to deploy Deep Packet Inspection (DPIs) techniques
to monitor, manage and monetize networks. Control of network traffic and content is
also exasperated by convergence of the Internet, which is best described as the
integration of technologies, content, services and applications over one high-speed
platform that is called broadband or Next Generation Networks (NGN). Undoubtedly,
the new technology is eroding the lines between content and broadcasting as well as
those of computer and consumer electronics, and hence, causing great confusion in
how they should be treated. On the one hand, digital content is perceived as being
akin to personal speech, whereas digital broadcasting is not.50 On the other, the
vacuum caused by the conception of the content industry is causing much of the
underlying confusion behind NN claims and debates. Werbach, for example, argued
that: “the Internet is substitutable for existing media.”51 Hence, highlighting concerns
over Intellectual Property Rights violations resulting from Peer-to-Peer (P2P) file
sharing applications (i.e., Napster). According to Fenwick McKelvey: “the popularity
and growth of these two algorithms is pulling the Internet in different directions.”52
1.4 THE ECONOMIC PERSPECTIVE: THE PROS AND CONS
OF PAY FOR PLAY
It is pervasively understood that information technologies are the enablers of growth
in the past decade, increasing productivity and efficiency gains across the value
chains of diverse sectors of the economy. For many years, “telecommunications
50 Graham J. , Internet Law and Regulation, ed. 4th (UK: Sweet & Maxwell, 2007). p. 1 51 Christopher T. Marsden, Regulating the Global Information Society (London and New York: Routledge, 2000). p. 114 52 Mckelvey, "Ends and Ways: The Algorithmic Politics of Network Neutrality." p. 51
19
policy has been increasingly driven by industrial strategy linked to innovation and
competitiveness,” 53 and this has witnessed the rise of companies like Google,
Amazon, and Skype. Most recently, however, this notion of information technologies
is changing to include: the new information technologies are the new economy,54 thus,
placing communications technology in good stead for commercialization.
In providing preferential treatment on the basis of QoS, carriers are more able to
obtain a return on investment in network infrastructure and provide tailored, value-
added services to their subscribers. Wu and Yoo argue that: “Networks are a service
delivered for profit and managing traffic aids in profitability.” 55 Admittedly, the
economic debate surrounding NN is predicated on the premise of “how best to finance
the maintenance and construction of a broadband network in a two sided market.”56
According to Sidak: “The prerogative of Internet Service Providers to obtain a return
on investments in network infrastructure through vertical tying of Internet services
into bundled offerings for maximum profit lies at the heart of debates on NN
regulation.”57
Hence, in the event of enforcing NN regulation, carriers would be prevented from
engaging in such practices to remain competitive in the market. Conversely, absent
NN regulation, carriers would be allowed to charge either consumers, or “application
53 Marita Moll and Leslie R Shade, "Telecommunication Picks Up Speed on the Free (Market) way," The Harper Record (2008). p. 405 54 Tom Wheeler, "Net Effects: The Past, Present and Future Impact of our Network," Federal Communications Commission (FCC), http://www.fcc.gov/blog/net-effects-past-present-future-impact-our-networks-history-challenges-and-opportunities. 55 Timothy Wu and Christopher S. Yoo, "Keeping the Internet Neutral? Timothy Wu and Christopher Yoo debate," Federal Communications Law Journal 59, no. 3 (2007). p. 575-592 56 Sidak, "A Consumer Welfare Approach To Network Neutrality Regulation of the Internet."p. 350 57 Ibid. (Sidak proposes that broadband owners have six fundamental rights: the right to innovate on their network, unilaterally price and use their network in any way that does not violate anti-trust laws; refuse to carry content or application that represents a legitimate risks to the security or performance of its network or the devices that subscribers attach to the operator’s network; prioritize packets of data for delivery on its network; reserve capacity on its network; use capacity on its network to vertically integrate into the provision of content and applications)
20
providers,” 58 perhaps even both for priority delivery or “access tiering.” 59 It would
even allow them to block, degrade or slow down certain websites and applications to
economically and politically discriminate against end-users. Nonetheless, the pros and
cons of the pay for play model can be elucidated as follows:
Access tiering will not only give a competitive advantage to deep pocket industries to
provide better quality of service at higher speeds and putting others who are less
financially fortunate to do so at a disadvantage, but will also disrupt the cycle of
innovation as well as investments in innovation. Nascent technology start-ups, for
example, may be less inclined to capitalize on innovative ideas, due to discriminative
network practices that may favor one service supplier over another and Angel
investors who are, in turn, likely to invest in innovation may be less inclined to do so
for the same reasons.60 According to Barbra Van Schewick: “Fees for access or
prioritization will have a chilling effect on investment and innovation across the
domestic and global economy.” 61 Access tiering may allow broadband Internet access
service providers abroad to engage in discriminative network practices against
American, British, or Asian providers in favor of their affiliates. Hence, endangering
cross-border investments and exports in ICT, notwithstanding academic research and
learning as the new paradigm will also affect university libraries, academic
institutions and public research centers that are already beneficiaries of free
knowledge and information exchange online. Moreover, Faulhaber and Farber argue
58 This implies content, services, devices and application providers. 59 Sidak, "A Consumer Welfare Approach To Network Neutrality Regulation of the Internet." p.349 (Giving network bandwidth priority to websites that pay for better delivery of QoS) 60 Barbera Van Schewick, "Towards an Economic Framework for Network Neutrality Regulation," Journal on Telecommunications & High Technology Law 5(2006). p. 332 61 ———, "Opening Statement at the FCC's workshop on Approaches to Preserving the Open Internet.," http://www.law.standford.edu/diplay/images/dynamic/publications_pdf.
21
that: “The new paradigm would reduce innovation and investments as well as create
additional costs on the consumer.” 62
By contrast, David Clark argues in favor of differentiation on the basis of Quality-of-
Service (QoS) stating that: “Bandwidth differentiation could help avoid an even more
dramatic form of discrimination. That is, to build multiple parallel versions of the
Internet, each supporting different service qualities, and separately selling access to
each.” 63 The Government of the Hashemite Kingdom of Jordan, for example, is
already building a parallel public-private network to connect universities, schools,
ministries and hospitals around the kingdom with Next Generation Network (NGN).
Whether this proves beneficial to consumers is beyond the scope of the essay, but
those in favor of the open Internet such as Wu argue that: “A total ban on network
discrimination is counter-productive.”64 In 2006, Sir Tim Berners-Lee, the founding
father of the Internet best put it: “If I pay to connect to the Internet with a certain
quality of service, then we can communicate at that level-it is not asking for the
Internet for free. Net Neutrality is not asking that one should not pay more for high
quality of service.”65 Those against the two-tier service contract, like Marsden, argue
that: “Discrimination will eventually lead to charging more for more, or the same for
less.”66 Or, it will create a “walled garden” 67 of preferred suppliers.
62 Faulhaber and David J. Farber, "The Open Internet: A Customer-Centric Framework," (AT&T). p. 1 63 David D. Clark, "Network Neutrality: Words of Power and 800-Pound Gorillas " International Journal of Communication 1(2007). p. 705 64 Wu, "Network Neutrality, Broadband discrimination."p. 167 65 Tim Berners Lee, "Net Neutrality: This is serious," DIG, http://dig.csail.mit.edu/breadcrumbs/node/144. 66 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 55 67 Ibid. p. 88 (A walled garden is a type of IP content service offered without access to the wider Internet)
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In defense of these claims, Mueller noted that: “A bandwidth market is not a zero sum
game, in which an extra bandwidth consumed by one person means less for others.”68
Consumers tend to differ in their consumption patterns. To this effect, Sidak noted
that: “Contrary to the conventional wisdom, unfettered access tiering will not harm a
content provider who does not contract for priority tiering, because speeds would
increase.”69 Furthermore, any differentiated service according to Marsden should be
granted on fair, reasonable and non-discriminatory manner (FRAND),70 a method,
though somewhat vague, is comparable to the Fair and Equitable Treatment Standard
(FET) under investment law, the National Treatment and Most- Favored Nation
Treatment (MFN) standards under trade and investment law. The FRAND model will
supposedly disregard any notion of discrimination that this new paradigm may bring
in creating an uneven playing field. Nonetheless, mounting fears and concerns over
how this type of governance would play out and impact consumers the world over is
uncertain, particularly in terms of shifting competition to a race to the top, when
thinking about it in financial terms, or a race to the bottom, when thinking about it in
regulatory terms, as well as incentivizing investments in building broadband network
infrastructure. The adversarial consequences of access tiering may result in increasing
digital divides and creating unfair advantage.
1.5 THE REGULATORY PERSPECTIVE
For the most part, the Internet has gone almost unchecked by regulators prior to the
mid-1990. In an article written by David Wall on: Policing the Internet: maintain law
68 Mueller, "Net Neutrality as a Global Principle for Internet Governance." p.3 69 Sidak, "A Consumer Welfare Approach To Network Neutrality Regulation of the Internet."p. 355 70 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 211
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and order on Cyberbeat, he argued about the development of two distinct approaches
to Internet regulation: one put forward by cyber-libertarians and the other by
regulators. Cyber-libertarians purport that the rule of law vis-à-vis Internet
governance posits that there is a seamless link between the physical and virtual world
as regards statutory law and regulation. This is almost true, especially when
considering that complaints over violations conducted online hardly ever get dealt
with by the law, but by the shadow of the law. It presupposes that if statutory law
does not shape behavior online, then action online is determined by discretionary
action that is shaped by social norms.71 Hence, intervention measures that are
proposed by cyber-libertarians tend to focus on the causes of deviant behavior online,
whereas regulators focus on addressing the symptoms by introducing new regulations
that will arguably affect the natural and seamless architecture of the Internet as an
open and deregulatory space.72 Both debates are, in fact, plausible and tend to operate
in parallel.
According to Alison Powell NN regulation is “paradoxical and culturally
grounded.” 73 In other words, cultural factors and previous regulatory decisions
influence policy outcomes across the wide spectrum of substantive issues associated
with NN: competition and market power, freedom of expression, investment and
innovation, historical decisions and transparency. They tend to focus on either one of
two approaches: regulation or deregulation and the advantages and disadvantages of
each approach. There are others, however, who argue in favor of the middle ground:
co-regulation. That is, “industry self-regulation as well as state enforcement, but with
constitutionally uncertain protections for end-users and great latitude for private
71 Yaman Akdeniz, The Internet, Law and Society (Pearson Education Limited, 2000). 72 Ibid. 73 Powell and Cooper, "Net Neutrality Discourse: Comparing advocacy and Regulatory Arguments in the United States and the United Kingdom." p. 3
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censorship.”74 According to Christopher Marsden, NN regulation constitutes one of
either two forms of discrimination:
“A backward-looking approach to discrimination that holds the view, that end users
should not be held at a disadvantage by the vague and invidious practices of Internet
Service Providers. This is called Net Neutrality-lite where no discrimination is
permitted for whichever purpose. By contrast, a positive view of NN regulation holds
that: Higher quality of service at higher prices should be offered on fair, reasonable
and non-discriminatory terms (FRAND) to all comers. This is the modern version of
common carrier.” 75
Sidak, on the other hand, argued that Network Neutrality regulation: “Would displace
or subordinate a substantial portion of telecommunications regulation.76 Additionally,
Timothy Wu postulated that: Network Neutrality focuses on two distinct themes: “An
effort to develop forbidden and permissible grounds for discrimination in broadband
usage restrictions.”77 Hence, the question on whether to regulate (or not) is widely
contested as it revolves around two distinct themes: To discriminate between traffic
packets by broadband Internet access service providers, or to charge application
providers premium price for access to their subscribers based on guaranteed levels of
QoS. The basis of claims on which proponents and opponents argue for or against Net
Neutrality is as follows:
Firstly, proponents argue that without regulation control of the Internet would pass on
to telecom operators, who would then exert control through discriminatory network
74 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 211 75 Ibid. 76 Sidak, "A Consumer Welfare Approach To Network Neutrality Regulation of the Internet."p. 349 77 Wu, "Network Neutrality, Broadband discrimination." p. 168
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management practices in favor of their affiliates against those of their competitors.78
Secondly, too much regulation would “unduly restrict personal expression, creativity,
political participation and social activism.”79 It would also create additional costs on
the consumer.80 Others argued that a “prophylactic, statutorily mandated network
regime,”81 might not keep up with the fast pace of developments of technologies,
rendering them obsolete and ineffective to meet the demands of the day. Thirdly,
whether there is any relevance to regulation at all in light of available competition and
transparency requirements. Christopher Yoo holds that in a competitive market there
is no incentive to discriminate and interfere with downstream markets. Hence, insofar
as the consumer is well informed on the services provided by his/her operator and has
the right to switch operators is guaranteed, the so-called right to vote with your feet,
the consumer is protected. This view is widely held by the majority of EU countries.
1.5.1 Regulatory Approaches To Network Neutrality
It is common knowledge that the purpose of regulation is multifold; some of which
include the need to attain social goals, normally difficult to attain without regulation,
or avoidance of monopoly power and market failure.82 But, the most important reason
for regulation is to increase competition and consumer protection, which is hard to
determine, in the context of NN. The reason is due to the extent to which
discrimination is regarded as reasonable (or not), which in most cases may be subject
78 Barbera Van Schewick, "Towards an Economic Framework for Network Neutrality Regulation," Journal on Telecommunications & High Technology Law 5(2007).p. 332 79 Ofcom, "Traffic Management and Net Neutrality," (United Kingdom: Ofcom, 2010a). p. 7 80 Faulhaber and Farber, "The Open Internet: A Customer-Centric Framework." p. 1 81 Philip Weiser, "The Next Frontier of Net Neutrality," Administrative Law Review 60(2008). p. 274-276 82 This will be further illustrated in the section (1.6) on Common Carrier.
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to relative interpretations rather than objective reasoning. To this effect, the FCC
issued a Notice of Proposed Rulemaking (NPRM) in 2009 delineating the boundaries
of non-discrimination and reasonable network management. On non-discrimination,
the FCC noted: “We understand the term non-discriminatory to mean that a
broadband Internet Service provider may not charge a content, application or service
provider for enhanced or prioritized access to the subscribers of the broadband
Internet access service provider.”83 And on reasonable network management, the FCC
noted the following:
“Reasonable network management consists of: a) reasonable practices employed by a
provider of broadband Internet access to: reduce or mitigate the effects of congestion
on its network or to address quality-of-service concerns, address traffic that is
unwanted by users or harmful, prevent the transfer of unlawful content, or prevent the
unlawful transfer of content and other reasonable network management practices.”84
Further, the Commission’s order against Comcast in 2008 ruled that: “Minimally
intrusive practices and blocking of illegal content may fall within reasonable network
management, but a discriminatory and arbitrarily practice that unduly squelches the
dynamic benefits of an open and accessible Internet would not constitute reasonable
network management.”85 This was later followed by rules on NN protections in 2010,
which provided for transparency requirements and prohibited blocking of Internet
traffic without unreasonable discrimination and, in the processes, exempted wireless
83 Federal Communications Commission (FCC), "Notice of Proposed Rulemaking," (Washington, D.C: FCC, 2009). p. 42 Para (106) 84 Ibid. p. 50 Para (135) 85 Federal Communications Commission Record 23, "Comcast Corporation for Secretly Degrading Peer-to-Peer Applications: Memorandum Opinion and Order," (USA: FCC, 2008); (FCC), "Notice of Proposed Rulemaking." Para (106)
27
broadband from such requirements.” 86 Hence, the diverse approaches adopted to
regulation fall within the following categories: “Absolute non-discrimination,
whereby discrimination is neither allowed on QoS requirements nor on the basis of
reasonable network management, b) limited discrimination without access tiering,
which implies discrimination for reasonable network management only without any
additional costs incurred on application providers, c) limited discrimination and
quality of service tiering, whereby an operator can charge application providers fees
for varying levels of QoS or provide the minimum for free, and finally no regulation
at all.” 87
1.5.2 Regulatory Practices in Network Neutrality
In looking at State Practice as they relate to Net Neutrality, it is easy to argue that
they typify long-held patterns in regulatory traditions: US-Corporatism, European-
style social-democratic welfare and the developmental State of Japan. This was the
initial perception conceived of when reading comparative literature on the subject.
But, with further reading, the following was identified: “The US and UK exhibited
two extremes in their practices of Internet traffic management and specifically in
three crucial respects: competition, regulation and discrimination.”88 Cooper argued
that absent network neutrality regulation, Internet Service Providers (ISPs) would
86 FCC, "Report and Order In the Manner of Preserving the Open Internet Broadband Industry Practices," GN Docket No. 09-191 and WC Docket No. 07-52 (The Federal Communications Commission, 2010). Para 1, 8 87 Economides and Joacim, Network Neutrality and Network Management Regulation: Quality of Service, Price Discrimination, exclusive contracts. p. 4-5 88 Alissa Cooper, "How Regulation and Competition influence Discrimination in Broadband Traffic Management: A Comprehensive Study of Net Neutrality in the United States and the United Kingdom" (2013). p. 44- 49
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determine which applications succeed or fail and thus pick the winners and losers.89
By contrast, too much reliance on competition will constrain investments in
broadband,90 which will have an adversarial impact on digital rights, particularly in
developing countries as well as the broader development of the Internet ecosystem.
And while it is easy to argue that deviations from the principle, in general, are simply
too few to mention, they are, nonetheless, profound and of high profile value given
the level of debates they generate at the political, socio-economic and human rights
levels.
From a generic standpoint, the State of Internet regulation is very reminiscent of the
time when the so-called retreat of the state made room for Internet multi-nationals;
like: Google, Netflix, AT&T, among others who are generally few in number,
relatively speaking, but account for the world’s largest concentrations of wealth in the
world, to intercept government chambers and dictate their regulatory rules, often at
the expense of public interest.91 So, if one believes in the notion of history repeating
itself, the internet today is undergoing major transformations from the Keynesian
welfare model that benefits individuals and corporations; both large and small, to the
new regulated Internet that is seeking to produce a fragmented space where resources
are unevenly distributed. This runs contrary to explicit principles issued by the EU 92
in 2014, the G893 and OECD.94
89 Ibid. 90 Ibid. 91 Sol Picciotto, Regulating Global Corporate Capitalism (NY: Cambridge University Press, 2011). p. 12 92 European Commission, "COMPACT Principles for internet Policy and Internet Governance," (2014). 93 ———, "G8 Deauville Declaration (2011) Section II Internet para. 5," (European Commission, 2011).: Section II: The openness, transparency and freedom of the Internet have been key to its development and success. These principles, together with those of non-discrimination and fair competition, must continue to be an essential force behind its development 94 OECD Council, "Recommendations on Internet Policy Making," (2011). 1-Promote the free flow of information 2. Promote the open, distributed and interconnected nature of the Internet 3.Promote
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This section will identify current practices to Internet regulation that are not mutually
exclusive: reliance on existing law, ex-ante prohibitions on discrimination &
transparency requirements, principles-based case-by-case enforcement and regulatory
threat.95 The latter means that the onset of over-regulation will result in a fragmented
Internet that constrains Internet Service Providers from providing special offerings to
its customers for experimentation and provision of diverse service offerings. Further
elaborations can be found below:
1.5.2.1 Reliance on Existing Law
When considering that there are two kinds of discrimination: harmful and positive, it
is easy to argue that any negative activity can be addressed under existing law,
notably competition law.96 Take for example the Madison River Communication,
which blocked Vonage’s VoIP access to its customers so that they switch to a
competing service that is affiliated with the company.97 The case was examined
against the backdrop of the Open Internet Order that espoused principles of protection
of Network Neutrality.
Investments and Competition in high-speed networks 4. Promote and enable the cross border delivery of services 5. Encourage multi-stakeholder cooperation in policy development processes 6. Foster voluntary codes of conduct 7. Develop capacities to bring publicly available, reliable data into the policy making process 8. Ensure transparency, fair process and accountability 9. Strengthen consistency and effectiveness in privacy protection at a global level 10. Maximize individual empowerment 11. Promote creativity and innovation 12. Limit Internet intermediary liability 13. Encourage cooperation to promote Internet security 14. Give appropriate priority to enforcement efforts. 95 Cooper, "How Regulation and Competition influence Discrimination in Broadband Traffic Management: A Comprehensive Study of Net Neutrality in the United States and the United Kingdom". p. 44 96 Ibid. 97 Federal Communication Commission Record 20, " Consent Decree, Madison River Communications, LLC (4296) " (USA: Federal Communications Commission, 2005).
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1.5.2.2 Ex-ante Prohibitions
This is best described as intervening before a harmful discrimination takes place.
Under this approach, regulators promote competition and transparency requirements
by requiring Internet Service Providers to disclose information on network
management practices as the lynchpin for Network Neutrality protections; arguing
that such an approach would serve to discipline Internet Service Providers against
negative applications-specific strategies that could hinder freedom of expression. The
downside of this approach is that it would be too strenuous to implement, due to
difficulties in differentiating between harmful and positive discrimination, together
with users’ inability to identify discriminatory practices directed at them to begin
with.
1.5.2.3 Principle-Based Case-by case basis
This approach relies on adjudicating cases individually on case-by-case basis against
the backdrop of established principles and rules that promote against Net Neutrality
deviations. Previous arguments apply to this approach with one slight distinction: In
the absence of statutory rules, guiding principles provide opportunities for
enforcement even in cases where discrimination is not anti-competitive. This
approach provides flexibility to experiment with network management techniques,
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while simultaneously disciplining against arbitrary conduct. For example, the Uzun v
Germany would be a case in point. 98
1.6 NETWORK NEUTRALITY AND COMMON CARRIER
Historically, the principle of common carriage revolved around the duty to serve the
public with a certain standard of care on just and reasonable terms. 99 Today, the
scope of common carriage covers a broad range of conditions that include: “A
Carrier’s voluntary assent to hold itself out as a common carrier, is affected with a
public interest, constitutes a natural monopoly and offers transparent transmission
capability between points of the customer’s choosing without change. 100
Unfortunately, these conditions do not extend to the application of broadband
technologies, at least not yet. But, prominent US legal theorist as: Werbach, Lemley
and Lessig “have defined Network Neutrality by regard to common carriage and open
access principles.”101 In doing so, they have equated the two regimes together and
underlined the role of the Internet as an “innovation-commons.”102 However, Net
Neutrality and open access are two sets of different policy regimes that may have
different implications.103 The latter involves a broader regulatory framework that
allows intermediaries like MSN to access conduits like AOL at non-discriminatory
price, whereas Net Neutrality provides unrestricted access to intermediaries so that
98 UZUN v Germany, no. 35623/05, ECtHR 2010 99 James B. Speta, "A Common Carrier Approach to Internet Interconnection.," Federal Communications Law Journal 54(2002). p. 253 100 Christopher S. Yoo, "Is there a role for common carriage in an Internet-based World?," Houston Law Review 51, no. 2 (2013). p. 546 101 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 29 102 Zhu, "Bringing Neutrality to Network Neutrality." p. 629 103 Economides and Joacim, Network Neutrality and Network Management Regulation: Quality of Service, Price Discrimination, exclusive contracts. p. 8
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Yahoo cannot restrict which content providers can be accessed through its portal.104
By equating the two regimes, Lessig and others sparked a range of controversies over
whether broadband may qualify as common carriage under the aforementioned
requirements: i.e., affected with a public interest, offers transparent transmission
capabilities, etc. Ostensibly, it fails to do so, but the underlying tensions are ascribed
to the difference between NN as a socio-economic policy, on the one hand, and a
public interest requirement, on the other. Another important criterion is whether it
provides practical and economic justification for increasing competition and uptake of
broadband technologies. Those against it state that: “a descriptive proposition does
not necessarily entail a normative one,”105 as it needs to ensure positive social
outcomes. According to Noam:
“Common carriage is of substantial social value. It extends free speech principles to
privately owned carriers. It is an arrangement that promotes interconnection,
encourages competition, assists universal service, and reduces transaction costs.
Ironically, it is not the failure of common carriage, but rather its very success that
undermines the institution. By making communication ubiquitous and essential, it
spawns new types of carriers and delivery systems.” 106
By contrast, Yoo argues that: common carriage will not extend to broadband is nor is
it likely to107 arguing that:
“Common carriage has long been difficult to implement. Nondiscrimination is
difficult to enforce when products vary in terms of quality and cost and forecloses
demand side price discrimination schemes that can increase economic welfare. In
104 Ibid. 105 Yoo, "Is there a role for common carriage in an Internet-based World?." p. 558 106 E.M. Noam, "Beyond Liberalization II: The Impending Doom of Common Carriage," Telecommunications Policy 18, no. 6 (1994). p. 435 107Ibid. p. 435
33
addition, the academic literature has long noted that the obligation to keep rates
reasonable is difficult to apply, has trouble accommodating differences in quality,
provides weak incentives to economize, creates systematic biases toward inefficient
solutions, raises difficult questions about how to allocate common costs, deters
innovation and requires collusion by creating entry barriers, standardizing products,
pooling information, providing advance notices for any price changes, and allowing
government to serve as the cartel enforcer.” 108
Moreover, the positive definition of Network Neutrality advanced by Marsden
provides that: “Discrimination for the provision of quality of service on FRAND
terms is reflecting a contemporary version of common carrier.” 109 In view of the
various outlooks on common carriage over the years, it is easy to argue that the
concept of common carriage is not a static definition. It changes in accordance with
the development of technologies and country-specific requirements. But, has
maintained the need to meet the legal necessity of public service at reasonable and
just terms, without discrimination.110 For example, privately owned companies like
the Telegraph and Telephone companies in 1910 when they were not perceived to be
carrying anything were regarded as quasi-common carriers with eminent domain in
order to extend their public service value to citizens.
As regards Telecommunications and Information and Communications Technology
(ICT) industry, the provision and application of common carriage for each differs.
While universal service (US) and universal access (UA) are key components of the
common carrier obligation, they apply to telecommunications and ICT in different
ways and to different degrees. The latter entails providing access at a community or
108 Yoo, "Is there a role for common carriage in an Internet-based World?." p. 546 109 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 211 110 See INTERNATIONAL TELECOMMUNICATION UNION, WORLD TELECOMMUNICATION DEVELOPMENT REPORT 1998, Chapter 4, Universal Access (1998)
34
group level such as: public telephone, or telecenters, etc., whereas the former entails
provision of service to the household and individual levels. 111 Also, the
nondiscrimination requirement that predated the Telegraph and the telephone industry
was omitted. The court held that: “There was no breach of the nondiscrimination
requirement if different prices for the same service were charged to different
people.” 112 Hence, the concept of common carriage was subjected to different
requirements and developments over the years depending on the nature and type of
business. In the US, for example, the broadband market was deregulated under the
Bush administration to promote competition and the common carrier principle was
abandoned.113 In doing so, broadband was classified under Information services (Tier
I) of the Communications Act for the year 1934. According to Robert Frieden:
“Congress, state regulators and the Federal Communications Commission (FCC) have
shared the view that cable television and value-added information services do not
constitute common carriage and do not fit into a pervasively regulated
communications category like telephony.” 114 By contrast, (Tier II) of the
Communications Act includes the common carrier obligation, to which the
telecommunication, telephone and telegraph services are classified under.
In the EU, there have been debates to include broadband as a requirement in the
Universal Service Directive of the EU electronic communications law, but so far no
concrete measures have been taken toward that end. The window of opportunity for
network neutrality proponents to include it in the universal service/access policy lies 111 ITU InfoDev, "ICT Regulation Toolkit: Universal Access and Universal Service." p. 7 (Collecting common law cases) 112 Interstate Commerce Communication v B&O R.R. Co., U.S (1892), 145 U.S. 263, 275((1892)). In response to this claim, one scholar argued that those who claim there is no breach of the non-discrimination requirement if different prices for the same service was charged do not understand the essence of common carriage. 113 Competition in the U.S is based on inter-modal competition between networks and not intradmodal. 114 Robert M. Frieden, "Universal Service: When Technologies Converge And Regulatory Models Diverge," Harvard Journal of Law and Technology 13, no. 3 (2000). p. 396
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under Article 22 (3) of the EU Universal Service Directive.115 However, this entails
the proposition to impose a minimum quality of service requirement (QoS) as a
“method of last resort” or in the event of “abject market failure or extreme unfair
discrimination, where all other options for addressing the situation have been
exhausted.”116
1.7 THE POLITICAL PERSPECTIVE: INTERNET
GOVERNANCE & NETWORK NEUTRALITY
Internet governance, so called the multi-stakeholder model, is a global coordination
mechanism that ensures the range of stakeholders operating the Internet’s ecosystem
across all network layers are cooperating such as to maintain the functional nature of
the Internet as we know it: open, free and a universal space.117 This task is being
administered by an agency within the U.S Department of Commerce called the
Internet Cooperation for Assigned Names and Numbers (ICANN), whose role
according to the Working Group on Internet Governance (IGF) goes well beyond
assigning Internet names and addresses.118 Debates on NN are bringing into question
115 In order to prevent the degradation of service and the hindering or slowing down of traffic over networks, Member States shall ensure that NRAs are able to set minimum quality of service requirements on an undertaking or undertakings providing public communications networks. 116 Virgin response to public consultation p. 2 <http://ec.europa.eu/Information_Society/policy/ecomm/library/public_consult/net_neutrality/pdf> accessed May 16, 2014 117 Chatham House, "Global Commission on Internet Governance," The Royal Institute of International Affairs, http://www.chathamhouse.org/about/structure/international-security-department/global-commission-internet-governance-project.Internet Governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures and programs that shape the evolution and use of the Internet. 118 ITU, "Report from the Working Group on Internet Governance." Internet Governance is the development and application by governments, the private sector and civil society in their respective roles, of shared principles, norms, rules, decision-making procedures and programs that shape the evolution and use of the Internet.
36
the legitimacy of ICANN vis-a-vis its role as a technical organization and its new role
of assessing the moral valuation of a domain name to meet moral standards of
relations in cyberspace. This is perceived to be jeopardizing its future role within a
neutral Internet environment from that, which is technical to that, which is legislative
in nature and thus, not necessarily neutral. 119 Secondly, the recent decision to
globalize ICANN is seen by many as a threat to Internet governance.120 On the one
hand, scholars argue that it is a transition that would likely jeopardize Internet
freedoms associated with autocratic regimes. Others perceive it as a shift toward
representative democracy and ICANN’s adherence to international principles of
inclusivity, state sovereignty and decentralization. Thirdly, the entrenched and widely
held view of the Internet as a system of meritocracy, where intelligence and power
reside at the edges of the network is being undermined by NN regulations. The reason
is due to shifting power relations from the periphery to the center and into the hands
of governments.
Indeed, the underlying discourse on Internet governance and NN focuses on who
controls power in cyberspace and to what degree is regulation of cyberspace
permissible. According to Tim Wu: “Liberal theory predicts that regulation of the
Internet would differ from each state to the next, as they tend to represent a
heterogeneous mass.”121 Moreover, an institutionalist theory of international relations
prescribes an international regime to be based on “a set of implicit and explicit
principles, norms, rules and decision-making around which actor expectations
converge.”122 The Internet appears to be conforming to this theory of an international
119 Mueller, "Net Neutrality as a Global Principle for Internet Governance."p. 11-14 120 House, "Global Commission on Internet Governance." 121 Timothy S. Wu, "Cyberspace Sovereignty: The Internet and the International System," Harvard Journal of Law and Technology, no. 10 (1997). p. 662 122 Ibid. p. 656
37
regime in which problems are addressed collectively between rational state actors that
prompts them to coordinate and collaborate to achieve desired outcomes:123 Resolving
Internet-related problems as network insecurity, censorship, discrimination, traffic
congestion, just to name a few.
Furthermore, the Internet is not immune or insulated from the laws and regulations
that govern individual interaction in the physical world. The doctrine, as it appears to
be, is not exogenous to Internet governance, but is part and parcel of it. It represents a
“vertical value chain of dominance” 124 that requires realignment with traditional legal
notions and norms of the physical world. As an egalitarian norm founded on the
values of liberalism, equal participation, and packet equality, the principle of Net
Neutrality is both controversial and self-defeating. It is self-defeating because it
presupposes that the explosive growth of cross-border relations is ascribed to the
perceived decentralized and deregulated nature of the open Internet as an even-
playing field. In reality, this provides for a misguided conception, as many scholars
believe “it is a golden age that never was.”125 According to Loader: “The origins,
development and cooperative ethos of cyberspace are directly related to the real and
controlled world of government policy-making and public expenditure.” 126
Christopher May also noted that: “Technologies are developed in specific
circumstances and deployed reflecting contemporary social relations.” 127 Lessig
argued along similar lines by stating that: “The Internet is not only shaped by the code
upon which it is founded, but the development of code will also allow for the perfect
123 Ibid. p. 657 124 The term “ vertical value-‐chain of dominance was advanced by scholars in a different context. 125 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 25 126 B.D (ed.) Loader, The Governance of Cyberspace (1997). p. 6-7 127 Christopher May, The Information Society: A Sceptical View (UK and USA: Polity, 2002). p. 13
38
tool of control to be wielded by commerce with the backing of government.”128
Hence, the rules of the physical world are greatly transpiring into cyberspace.
It is also controversial because, the principle of NN in the strict sense of the word
undermines liberalism by neutralizing the role of Internet Service Providers, among
those who constitute the Internet’s value chain and who are representative of the
private and civil society sphere.129 According to a liberalist view of international
relations, power is placed with the individuals and groups of society, whose interests
are manifested through the institutions they represent. The Working Group on Internet
Governance (IGF) in its 2005 report echoed a liberal approach to Internet governance.
However, the down side to this argument is that in a networked form of governance,
where decisions are decentralized and authority dispersed, the power for democratic
accountability decreases. It may even put national security at risk and the overall
Internet in jeopardy when subjected to bias political views or cultural convictions. For
example, an autocratic regime like Libya may block access to the Internet to maintain
its stronghold over the population. The Republic of China is continuously monitoring
traffic through sophisticated filtering instruments that use keywords like: democracy,
human rights to block access to certain websites. Absolute neutrality cannot be
implemented under these circumstances, rather a controlled and more cohesive
management approach is required on more or less sensitive matters, as for example,
Internet resources or domain names, whose management cannot be delegated to the
anarchic state of politics as they need to be unique and unmatched by any other.
128 L Lessig, Codes and other Laws of Cyberspace (New York: Basic Books, 1999). p. 20 129 Aurelio Lopez-Tarruella, Google and the Law: Empirical Approaches to Legal Aspects of Knowledge-Economy Business Models, ed. Information Technology and Law Series, vol. 22 (Springer T.M.C.Asser Press). p. 361
39
In the literature on War and Neutrality, Sir Hersch Lauterpacht, who is a prominent
legal scholar in this field, identified various forms of neutrality in law and politics:
absolute neutrality, qualified neutrality, perpetual neutrality, just to name a few. And
while I have no inclination to talk about the law of war and neutrality in this section,
my intention is to reflect its nuances as applied to Internet governance as it is easy to
be perceived in the context of absolute neutrality, where any slight deviation from the
concept constitutes a threat to individual welfare, economic progress and growth. This
may not necessarily be the case. In fact, the reverse holds true. Where serious threats
undermine the security of the Internet and end users, absolute neutrality cannot be
maintained. It follows that when the term Internet governance is used in conjunction
with absolute NN, it reflects an oxymoron state of affairs. The reason of which is
attributed to the tensions created by the Internet as a public and egalitarian standard
and an institutionalist or realist standard where states are perceived to be power
maximizing. Like any other form of governance, the Internet today is evolving,
centers of power are shifting and traditional and informal patterns of regulation may
prove incompatible with its modus operandi. As an evolving system, it is subjected to
the struggles of power politics inherent in any other form or system of the physical
world.
1.8 THE SOCIAL PERSPECTIVE: WHY IS NETWORK
NEUTRALITY IMPORTANT?
Ostensibly, the concept of NN does not embody the values of the new network
technologies, which are ever more characterized as: smarter, faster and more invasive.
40
The debates surrounding the concept center on whether the medium is the message or
the message is the medium which, of course, foreshadows an undesirable scenario to
those who have relied on the internet for innovation, education, commerce and trade,
or even news and information. This is tantamount to a more restricted and controlled
access to the services currently available to them today- A walled garden of preferred
suppliers. The fact that technologies were designed to be dumb by no means implies
that people should follow suit as they design smarter networks to cater for their every
need and interest. It is in this context that arguments about NN become more relevant,
particularly in regards to whose rights should be prioritized in a regime on NN: those
of citizens in pursuit of equal access to information, or those of corporations seeking
to profit from their hard-earned innovations and market power, or perhaps both. In his
book, Regulating Corporate Global Capitalism, Sol Picciotto, shed much light on the
underlying tensions between public-private interests in the neo liberal context of
global governance. The consequences of which led to the emergence of new forms of
relationships between the private and public sectors. These new relationships then led
to polyarchal methods of working that allocated responsibility to private corporations
in the delivery of public services, resulting in some kind of “privatization of
justice.”130 The debate on NN being under the influence of hybrid configurations of
power from multi-international corporations and government conjures up notions of
the impact of privatization of justice, particularly where large gaps in inequalities and
digital divides between and among countries exist. For the most part Internet Policy
narrowly accommodates public interest as it is driven by industrial policy that
promotes competitiveness and innovation, resulting in the concentration of wealth in
the hands of the few and the extension of private law norms in the delivery of
130 Picciotto, Regulating Global Corporate Capitalism. p. 17
41
services. It is in this framework of understanding, that a topic on NN necessitates
attention that is international in scale, if not supranational in scope due to its
importance to individual and community empowerment as well as economic growth,
job creation, innovation etc.
It is also noteworthy to mention that the successive waves of liberalization and
privatization of telecommunications worldwide in the early 80s up to the mid 90s
could not help but invoke questions on whether the broadband sector will eventually
succumb to hybrid regulatory clashes, influenced by cultural considerations or lend
the concept to international normative valorization with the view to legalize the
principle in international law. This reminds me of the point discussed by Suzan
Crawford in an Article she wrote to the New York Times on supporting municipal-
level fiber networks as a means to provide fair and equitable Internet access at
reasonable cost.131 It also reminded me of Jody Freeman’s point in her article:
extending public law norms through privatization, which highlighted the possibility of
bridging the gap between opponents of privatization, from a public law perspective,
and proponents of privatization, from an economic perspective.”132 She argued that
there is a possibility to extend public law norms to private corporations in the delivery
of public services through contract precision that does not value hierarchy over
economic efficiency and costs. Rather, through stringent rules and re-regulation that
balance public ambition with private goals.133The fact that mitigating corporate
concentrations with significant market power in the Internet ecosystem could be
mediated by administrative law such as direct regulation; contract and tort liability,
131 Suzan Crawford, "The Wire Next Time," The New York Times, http://www.nytimes.com/2014/04/28/opinion/the-wire-next-time.html?_r=1. Accessed July, 1st, 2014 132 Jody Freeman, "Extending Public Law Norms Through Privatisation," Harvard Law Review 116, no. 5 (2003). p. 1315 133 Ibid. p. 1286
42
just to name a few, is a sensible idea to uphold and promote in order to maintain
public interest safeguards, while simultaneously alleviating pressure on government
to fund welfare-generating schemes as network infrastructure. This also reminds me
of the importance of common carriage, which was discussed in previous sections of
this chapter. Hence, the high costs associated with building Next Generation
Networks (NGN) is a determining factor in whether the principle stands as an
international principle or simply succumbs to hybrid regulatory tensions influenced
by cultural considerations or long-held patterns of regulatory decisions.
In conclusion, whichever regulatory approach or Internet policy is adopted by one
country or another, NN will greatly influence decisions on investments in broadband
infrastructure, or not. A balanced, approach to intervention is, therefore, required that
may not necessarily hinge on absolute neutrality in regulation.
1.9 CONCLUSION
This chapter served to elucidate the level of consent with respect to the prescriptive
and normative elements of Network Neutrality. Thus far, the concept is reminiscent of
the old saying about the Internet: that it is easier to describe than it is to define. The
same holds true for the concept of NN, except there does seem to be consensus
emerging on the scope of the definition in light of reports of an impending bandwidth
crunch. Faulhaber, for example, argues: that on some parts of the debate as reasonable
network management, consensus is emerging. The underlying discourse on NN
focuses on who controls power in cyberspace and to what degree is regulation of
cyberspace permissible. According to an institutionalist theory of international
43
relations, power online may be shifting from the periphery to the core and into the
hands of governments. The idea is not only to collaboratively work on combating
internet-related problems, but also to afford protections to private sector investments
as it is one critical element in the equation on NN.
Furthermore, the two algorithms underlying the root of the doctrine: E2E and QoS
appear to be pulling the Internet in two different directions: A Commercial direction
that is premised on the idea of providing preferential treatment of packets to obtain a
return on investment in network infrastructure and a public policy direction that
promotes packet equality and is conducive to innovation. Each provides different
social and economic outcomes with unsubstantiated evidence as to the likelihood
welfare gains resulting from one policy or the other. As such, further research may be
required in this area in order to identify which is more welfare conducive.
While the Internet is celebrated as a public revolutionary good benefitting people
regardless of race, background, or creed, the high costs associated with building Next
Generation Networks (NGN) will be a determining factor in whether the principle
stands out as an international principle to benefit people regardless of race,
background or creed, or simply succumbs to the hybrid regulatory tensions influenced
by cultural considerations or long-held patterns of regulatory decisions. The second
chapter will delve into State practice in order to examine the level of consensus on the
subject.
44
CHAPTER 2: STATE PRACTICE
2.1 INTRODUCTION
The International Court of Justice (ICJ) defines Customary International Law in
Article 38 (1) “as evidence of general practice accepted as law.”134 In order to prove
whether a principle such as Net Neutrality (NN) is endowed with a normative
character of customary international law, two pre-requisite conditions need to be met:
The first is the subjective element that is anchored in the belief of a behavior or
practice as obligatory and of legal necessity. The second is the objective element that
provides evidence of consistent and uniform State practice.
This section will evidence the subjective and objective dimensions of Net Neutrality
by spotlighting NN legislations in different countries: the United States, European
Union, UK, Japan and Brazil. It will then highlight judicial decisions and international
statements/declarations and provide analysis of the outcome. In doing so, it will
highlight State practice in NN as rooted in the algorithm of quality-of-service (QoS),
not End-to-End (E2E). The latter conforms to pre-existing social practice that has
become ordinary behavior, which is customary behavior, while the latter is
internationally controversial.
134 James Crawford, Brownlie's Principles of Public International Law (United Kingdom: Oxford University Press, 2008). p. 22
45
2.2 NATIONAL LEGISLATION
Evidence of State practice vis-à-vis Network Neutrality can be highlighted in
legislations, government declarations, official statements and press releases, etc.
Below is a summary of research findings:
2.1.1 The European Union Model
In 2011, the European Parliament passed a resolution of (17) on the open Internet and
Net Neutrality in Europe, which stated that:
“The open character of the internet has been a key driver of competitiveness,
economic growth, social development and innovation, which has led to spectacular
levels of development in online applications, content and services, and has made it a
vitally important accelerator in the free circulation of knowledge, ideas and
information, including in countries where access to independent media is limited.” 135
In 2012, the Internet Governance Strategy of the Council of Europe urged the
development of human rights principles on NN to ensure users have the greatest
possible access to content, applications and services of their choice as part of the
public service value of the Internet and in full respect of fundamental right. This was
followed by the Internet Governance principles, which are yet to be adopted, but the
Net Neutrality doctrine is covered in principle number (9):
135 European Parliament, "Resolution of 17 November 2011 on the Open Internet and Net Neutrality in Europe," in P7_TA (2011)0511 (2011).
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“Users should have the greatest possible access to Internet-based content,
applications and services of their choice, whether or not they are offered free of
charge, using suitable devices of their choice. Any traffic management or privilege
should be non-discriminatory, justified by overriding public interest and must meet
the requirements of freedom of expression and access to information.” 136
Moreover, the European Parliament and the European Commission made a
declaration to protect the principle of NN, through the COMPACT principles of
Internet Policy and Internet Governance in 2014.137 Under the Better Regulation
Directive, the European Commission granted National Regulatory Authorities
(NRAs) new powers to require ISPs to be transparent about their traffic management
practices and set minimum quality of service requirement on network operators to
prevent degradation in service quality. This means that each country is at will to
deploy Net Neutrality approaches based on national conditions and requirements,
albeit not in an effective way as one might like. In the words of Darren Read: “The
EU electronic Communications Act was fraught with negativity on Net Neutrality.”138
136 Council of Europe, "Internet Governance Principles," (2010). 137 Commission, "COMPACT Principles for internet Policy and Internet Governance." 138 Read, "Net Neutrality and the EU electronic communications regulatory framework." p. 58-59
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2.1.2 The US Model
In 2004, the Federal Communications Commission (FCC) issued the Four Internet
Freedoms, all of which underpin the essence of Network Neutrality. These include
end users ability to:
1) Access lawful content of their choice.
2) Run applications and use service of their choice, subject to the needs of law
enforcement.
3) Connect their choice of legal devices that do not harm the network.
4) Competition among network providers, application and service providers and
content providers.139
But, these were generally seen as guideline principles lacking in authority the force of
statuary law. In 2010, the Federal Communications Commission (FCC) issued the
“Open Internet Order,”140 which is a set of regulations that seek to establish Net
Neutrality as a policy objective for electronic communications. However,
deregulation of the broadband market during the Bush administration led to the
emergence of a duopoly, 141 the abandonment of common carriage and the
classification of broadband as an Information Technology Sector under (Tier 1)
instead of (Tier 2) of the Communications Act for the year 1934. This culminated in
unsubstantiated claims of reduced competition in the broadband market because it
gave discretionary powers for Internet Service Providers to conduct discriminative
139 Federal Communications Commission, "The FCC Principles," ed. The Federal Communications Commission (FCC) (2004). 140 The Federal Communications Commission (FCC), "The Open Internet Order:25 F.C.C.R. 17905 ", ed. FCCR ( 2010). 141 European Parliment, "Network Neutrality: Challenges and Responses in the EU and the U.S," ed. Directorate General for Internal Policies (2011).
48
Internet traffic management, and thus, adversely affected the principle of Network
Neutrality. Today, however, the US market provides broadband via satellite in
addition to cable and broadband and is recently looking to approach the principle
from a content-tariff rate perspective.
Net Neutrality is also narrowly addressed in the American Recovery and
Reinvestment Act of 2009 (ARRA, P.L.111-5). Its provisions require the
establishment of non-discriminatory and network interconnection obligations as a
requirement for participants in the Broadband Technology Opportunities Program
(BTOP). This was to be implemented by the National Telecommunications and
Information Administration (NTIA), in consultation with the Federal
Communications Commission.142
2.1.3 The UK Model
The UK is characterized as a competitive and deregulated marketplace with
significant discriminatory network management practices.143 Net Neutrality in the UK
is understood to mean that there should be no prioritization of any type of traffic by
network operators; and those providing content, applications and services via the open
Internet should not be charged by network operators/Internet Service Providers for the
distribution of that content to the operator’s customer base. Its regulatory framework
is dependent on the EU, however, the Better Regulation Directive granted Ofcom (a
142 Angele A. Gilroy, "Access to Broadband Networks: The Net Neutrality Debate," (USA2014). p. 4 143 Alissa Cooper, “How Regulation and Competition influence Discrimination in Broadband Traffic Management: A Comprehensive Study of Net Neutrality in the United States and the United Kingdom” (2013). P. 151
49
converged regulator) authoritative and discretionary powers to regulate those aspects
of the Internet that fall under its jurisdiction: TV, radio, fixed and wireless
telecommunications.144 Debates on Net Neutrality did not surface until increased
attention on the subject in the U.S. became unavoidable to escape. A rallying-outcry
to maintain NN by civil society and academic community in the US was soon ceased
by Ofcom and framed in the context of enhancing transparency for consumer
protection and enhanced competition. This dual track approach was seen as the
lynchpin to counter negative deviations in Network Neutrality by carriers.
2.1.4 The Japanese Model
The Ministry of Internal Affairs and Communication (MIC) introduced an open
access regime based on all IP networks. This involved the convergence of
telecommunications and broadcasting services, which ensured low cost, equal access
and competition based on fair and non-discriminatory terms. The open access regime
allowed for the leasing of copper access lines to broadband ADSL providers to
encourage facilities-based competition in copper and fiber. Hence, it is very
developmental and forward-looking. In Japan, the market is deregulated and highly
competitive with an outlook to promote new competition policies at each network
layer: The content layer, the network layer and the platform layer.145 It promotes retail
144 Darren Read, “Net Neutrality and the EU electronic Communications regulatory framework,” International Journal of Law and Information Technology 20, no.1 (2012) p. 58-59 145 Yasu Taniwaki, "Emerging Broadband Market and the Relevant Policy Agenda in Japan." p. 25-31
50
and value-added services applied over a common infrastructure, so called functional
equivalence.146
2.1.5 The Brazilian Model
On March 25, 2014, the Brazilian lower Congress passed a bill titled: The
Constitution of the Internet, or what later became known as the Internet Bill of Rights.
It emerged as a response to concerns over the U.S National Security Agency (NSA)
surveillance program that aims at collecting and storing data of Brazilians stored on
Google, Facebook or Yahoo servers. Telecom operators charging higher prices for
different content such as video streaming further exasperated the problem. These
prompted President Dilma Rousseff to prioritize the Bill and take action to safeguard
individual freedom in cyberspace. The aforementioned legislation is based on three
core areas: Net Neutrality, freedom of expression, and Internet security. The result of
which would provide equal Internet access opportunities as well as protect the privacy
of individuals. 147 According to a Brazilian law professor: “Without net neutrality, the
Internet would look more like cable T.V where providers can offer different service
packages.” 148
146 Functional equivalence promotes competition based on retail and value added services applied over a common infrastructure and QoS discrimination limits the effectiveness of open access policies. 147 Reuters, "Net Neutrality Wins in Brazil's 'Internet Constitution'." 148 Ibid.
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2.2 JUDICIAL DECISIONS
2.2.3 Madison River Communications v Federal Communications
Commission (FCC) 149
On February 11th 2005, the FCC issued a letter of inquiry to Madison River following
a complaint that it was blocking ports used for VoIP applications, thereby affecting
customers’ ability to use the application of their choice. On February 22nd 2005
Madison River responded to the query but was found guilty. The FCC later issued an
order to Madison River that it shall not block ports used for Voice over Internet
Protocol (VoIP) applications or otherwise prevent customers from using VoIP
applications. This is in line with the four Internet freedoms issued in 2004 by the
Federal Communications Commission (FCC).
2.2.4 Comcast v Federal Communications Commission (FCC) 150
On August 1st 2008, the FCC ruled that Comcast violated the Federal Communication
Commission Policy Statement when it selectively blocked peer-to-peer connections
on grounds of traffic management. It stated: Such practice unduly interferes with
Internet users’ rights to access the lawful Internet content and to use the applications
of their choice. Comcast complied with the FCC ruling, but later filed an appeal to the
U.S. Court of Appeals for the District of Columbia, claiming that the Federal
149 Madison River Comms., LLC v FCC, 20 F.C.C.R. 4295, 4297 (2005). 150 Comcast v. FCC, 600 F. 3rd 642 U.S. Court of Appeals for the District of Columbia 2010.
52
Communications Commission does not have authority to enforce the Internet Policy
Statement under (Tier I) of the Communications Act for the year 1934. On April 6,
2010, the Court ruled in favor of Comcast stating that the Federal Communications
Commission failed to tie its assertion of ancillary authority over Comcast’s Internet
service to any statutorily mandated responsibility. On May 15, 2014, the Federal
Communications Commission adopted a Notice of Proposed Rulemaking (NPRM)
seeking public comment on how best to protect and promote the open Internet. This
notice is intended to establish a policy framework to ensure that the internet remains
open and retains the concepts adopted by the Federal Communications Commission in
2010 with respect to transparency, no blocking and no discrimination.151
2.2.5 UZUN v Germany 152
In October 2009, two people were placed under surveillance on the orders of an
investigating judge because of their suspected involvement in bomb attacks that had
been carried out by an extreme left wing. Realizing that they were under surveillance,
the two men destroyed the transmitters that had been installed in the applicant’s car
and by avoiding use of the telephone. To counteract this behavior, the Federal Public
Prosecutor authorized their surveillance by Global Positioning System (GPS), which
the authorities arranged to be fitted in the applicant’s car. In December 1995, the two
were found guilty of various bomb attacks on the basis of evidence obtained from the
(GPS), which linked the location of the car to the scene. Consequently, the Court
ruled that despite the act of surveillance via GPS constituted an interference with an 151 Gilroy, "Access to Broadband Networks: The Net Neutrality Debate."p. 7 152 UZUN v Germany. Application No.35623/05, IHRL 1838 (ECHR 2010), 2nd of September 2010, European Courts for Human Rights (ECtHR)
53
individual’s personal privacy, adequate and safeguard measures had been in place and
in accordance with the law. These measures were implemented to pursue legitimate
aims of protecting national security, public safety and the right for victims.
2.2.6 Odex Ptd, Ltd v Pacific Internet Ltd 153
Odex Ptd, Ltd engaged the services of an American company BayTSP.com
Incorporated to collect and track instances of unauthorized uploading and
downloading of copies of Japanese anime video titles. Through BayTSP, Odex
discovered (474,000) unique downloads over a period of eleven months. The judge
described that such downloads were restricted in Singapore and the world over. As a
result, Odex approached the Intellectual Property Rights Branch (IPRB) of the
criminal investigation Department in Singapore to individually identify violators of
copyrighted material. It requested the designated Internet Service Provider, the Pacific
Internet to disclose related information on those engaged in the activity individually.
The defendant Pacific Internet resisted to comply and, as a result, Odex’s application
was, dismissed. However, the ISP later complied when the Court requested the
disclosure of information and the perpetrators were then held in violation of copyright
law.154
153 Odex Pte Ltd v. Pacific Internet Ltd, 3 SLR 18 (2008). 154 Daniel Seng, "Evidential Issues From Pre-Action Discoveries: Odex Ptd, Ltd, v Pacific Internet Ltd.," Digital Evidence and Electronic Signature Law Review 6(2009). p. 25-32
54
2.2.7 K.U. v Finland 155
This Case concerns the posting of an Internet advertisement about a minor wanting a
sexual partner. The Court ruled that this had been a criminal act, which had resulted in
a minor having been a target for pedophiles. It recalled that such conduct called for a
criminal law response and that effective deterrence had to be reinforced through
adequate investigation and prosecution. Besides, children and other vulnerable
individuals were entitled to protection by the State from such grave interferences with
their private life.
2.3 INTERNATIONAL DECLARATIONS
The concept of Network Neutrality is not directly referenced in official declarations.
Rather, it is used interchangeably with the concept of open Internet. The European
Commission in 2009 made a declaration to that effect by stating the following:
“The Commission attaches high importance to preserving the open and neutral
character of the internet, taking full account of the co-legislators now to enshrine net
neutrality as a policy objective and regulatory principle to be promoted by national
regulatory authorities to prevent the degradation of services and the hindering or
slowing down of traffic over public networks. The Commission will monitor closely
the implementation of these provisions in the Member States, introducing a particular
focus on how net freedoms of European citizens are being safeguarded in its annual
Progress Report to the EU Parliament and Council. In the meantime, the Commission
155 K.U. v Finland application, no. 2872/02, ECtHR 2nd of December 2008. (Directive 2009/140/EC Commission Declaration on Network Neutrality)
55
will monitor the impact of market and technological development on ‘net freedoms’
reporting to the EU Parliament and Council before the end of 2010 on whether
additional guidance is required and will invoke its existing competition law to deal
with any anti-competitive practice that may emerge.”156
By contrast, President Barak Obama in 2006 openly supported the principle of net
neutrality as a policy objective, without opposing discrimination for the provision of
Quality-of Service (QoS). He stated in a public statement:
“The topic today is net neutrality. The Internet today is an open platform where the
demand for websites and services dictates success. You’ve got barriers to entry that is
low and equal for all comers … I can say what I want without censorship. I don’t
have to pay a special charge. But the big telephone and cable companies want to
change the Internet, as we know it. They say they want to create high-speed lanes on
the Internet and strike exclusive contractual arrangements with Internet content-
providers for access to those high-speed lanes. Those of us who can’t pony up the
cash for these high-speed connections will be relegated to the slow lanes. So here’s
my view. We can’t have a situation in which the corporate duopoly dictates the future
of the Internet and that’s why I’m supporting what is called net neutrality.” 157
Net Neutrality, moreover, is part of the International Telecommunications
Regulations (ITRs).158 (Article 3.1)159 on International Networks and (Article 4.3)160
156 Neutrality, "Directive 2009/140/EC European Commission Declaration on Net Neutrality." 157 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 1 158 International Telecommunication Union, "Final Acts of the World Conference on International Telecommunications 2012," (Geneva: ITU, 2013). P. 6-8 159 Member States shall endeavor to ensure that authorized operating agencies cooperate in the establishment, operation and maintenance of international networks to provide a satisfactory quality of service. 160 Subject to National law, Member States shall endeavor to ensure that authorized operating agencies provide and maintain, to the greatest extent practicable, a satisfactory quality of service corresponding to the relevant ITU-T recommendations with respect to: a) Access to the international network by users using terminals, which are permitted to be connected to the network and which do not cause harm to technical facilities and personnel, b) International telecommunication facilities and services available to
56
on International Telecommunications Services indirectly reference NN by
highlighting the need to establish, operate and maintain a satisfactory quality of
service in line with ITU recommendations. Furthermore, the Declaration of Principles
of the World Summit on Information Society (WSIS) in 2003,161 and its follow-up
action plan in 2005: The Tunis Agenda162 promote the concept of Network Neutrality
through various actionable objectives that encourage: interconnection, 163
transparency,164 development and investment in ICT infrastructure as well as non-
discrimination. 165 The majority of declarations, however, do not provide formalized
rules that can be enforced through statutory law. Instead, they merely constitute rules
and guidelines that simply set the general contours for what the principle is all about.
users for their dedicated use, c) At least a form of telecommunication service which is reasonably accessible to the public, including those who may not be subscribers to a specific telecommunication service; and d) A capability for interworking between different services, as appropriate to facilitate international telecommunication services.
161 WSIS, "The Declaration of Principles, Building the Information Society: A Global Challenge in the Millennium World," (2003). 162 ITU, "World Summit on the Information Society: The Tunis Agenda For the Information Society," (Geneva2005). 163 Ibid. Para 50 (a) Promoting Internet transit and interconnection costs that are commercially negotiated in a competitive environment and that should be oriented towards objective, transparent and non-discriminatory parameters, taking into account ongoing work on this project. Para (49) States: We reaffirm our commitment to turning the digital divide into digital opportunities, and we commit to ensuring harmonious and equitable development for all. We commit to foster guidance on development areas in the broader Internet governance arrangements and to include, amongst other issues, the international interconnection costs, capacity building and technology-transfer/know-how transfer. We encourage the realization of multilingualism in the Internet development environment, and we support the development of software that renders itself easily to localization and enables users to choose appropriate solutions from different software models including open-source, free and proprietary software) 164 WSIS, "The Declaration of Principles, Building the Information Society: A Global Challenge in the Millennium World." Para. (39) The rule of law, accompanied by a supportive, transparent, pro-competitive, technologically neutral and predictable policy and regulatory framework reflecting national realities, is essential for building a people-centered information society. Government should intervene as appropriate to correct market failures, to maintain fair competition, to attract investment, to enhance the development of the ICT infrastructure and applications, to maximize economic and social benefits and to serve national priorities 165 ITU, "World Summit on the Information Society: The Tunis Agenda For the Information Society." Para (31): We recognize that Internet governance, carried out according to the Geneva principles, is an essential element for a people-centered, inclusive, development-oriented and non-discriminatory Information Society. Furthermore, we commit ourselves to the stability and security of the Internet as a global facility and to ensure the requisite legitimacy of its governance based on the full participation of its stakeholders from both developed and developing countries, within their respective roles and responsibilities.
57
In other words, they are regarded as soft law. However, soft law can only assume
importance if a stringent mechanism for monitoring compliance with its provisions
exists. This was the view held by Sol Picciotto and, indeed, the World Summit on
Information Society (WSIS) commits to:
“Evaluating and following up progress in bridging the digital divide, taking into
account different levels of development, so as to reach internationally agreed
development goals, including those contained in the Millennium Declaration and to
assess the effectiveness of investments and international cooperation efforts in
building an information society.” 166
2.4 CONCLUSION
The principle of Net Neutrality if rooted in the algorithm of E2E is reflecting
customary International law. Imagined or perceived universal consent of users’ rights
espoused in the principle of NN have emerged into standardized methods of working
widely accepted and practiced. In the words of Steven Hetcher: Ordinary behavior is
customary behavior. However, with respect to NN rooted in the algorithm of QoS,
U.S. judicial outcomes indicate that: in the Madison River Communications vs. FCC
Case, NN is evidence of practice perceived as law, whereas the opposite was proved
in the Verizon vs. FCC Case. This dichotomy between US convictions of the legality
of NN in both cases reflects the difference in law articulated for political decision-
making, on the one hand, and dispute settlement, on the other. The latter reflects a
positivist approach in the interpretation of the law that hinders its development, whilst
166 WSIS, "The Declaration of Principles, Building the Information Society: A Global Challenge in the Millennium World." Para. (66)
58
the former reflects a pragmatic approach that leaves room for law making and
development of the law. In Europe, enforcement of NN rules were undertaken ex-
post, though overall there is no uniform and consistent practice in the application of
NN rules as they tend to be driven by cultural and political considerations.
The previous chapter looked at the definition of the concept and the extent to which
there is consent on the scope and limitations of the definition. In this chapter,
evidence of state practice suggests that an international norm is evolving with an
overarching objective to set standards for permissible and forbidden behavior. The
concept of NN is also supported by various organizations such as: ITU, OECD,
UNESCO, UNDP, IGF, in addition to a broad range of actors from the private, public
and civil society organizations. This endows the norm with a character of legitimacy
and normativity. However, despite the legal standing of NN in soft law format, this
does not necessarily indicate that it is weak or unenforceable. The fact that NN
interacts with fundamental human rights and is subject to strict monitoring and follow
up by International Telecommunications Union (ITU), among other UN-related
organizations such as: UNDP and IGF suggests that it is not hogwash or a solution in
search of a problem. According to scholars: electronic communications legislations
tend to be easier to enforce when they are in the form of guidelines and in soft law
format than in statutory law. This is due to their flexibility and time relevance. In
subsequent chapters, the moral motivations behind NN from a human rights and
commercial perspective will be discussed.
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CHAPTER 3: NET NEUTRALITY AND HUMAN RIGHTS
3.1 INTRODUCTION
The human rights perspective of Net Neutrality (NN) arose in response to three main
concerns: the first is related to discrimination at the content and physical layers. The
second is related to the new roles of Internet providers in policing the Internet, which
is perceived to be encroaching on civil liberties and freedom of expression. The third
deals with their newfound role as gatekeepers and watchdogs in a democratic society.
These are all having profound impact on human rights. The moral and ethical
foundations of NN are being brought to the fore by NGOs167 in order to bring a rights-
based approach to the development of broadband policy as it is currently perceived
within narrow public interest.168 Arguments focusing on the obligations of States vis-
à-vis NN underscore the indivisibility and interdependence of rights as an overarching
framework to guarantee NN goals.169 These include the need to protect, respect and
promote freedom of expression, opinion and privacy, on the one hand, and the right to
development, self-determination, and due process on the other; all of which form the
167 Non Government Organizations like: Internet society, the Internet Governance Forum, and Engine Advocacy, in addition to others from the academic community. 168 Alissa Cooper, “How Regulation and Competition influence Discrimination in Broadband Traffic Management: A Comprehensive Study of Net Neutrality in the United States and the United Kingdom” (2013). P. 26 169 ITU, "World Summit on the Information Society: The Tunis Agenda For the Information Society."Para. 3 which states that: We reaffirm the universality, indivisibility, interdependence and interrelation of all human rights and fundamental freedom, including the right to development, as enshrined in the Vienna Declaration. We also reaffirm that democracy, sustainable development and respect for human rights and fundamental freedoms as well as good governance at all levels are interdependent and mutually reinforcing. We further resolve to strengthen respect for the rule of law in international and in national affairs)
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bedrock of a well-functioning democratic society anchored in the rule of law, social
justice as well as human integrity.
This chapter will reference NN in either the negative or positive formulations of the
definitions, where the latter indicates plausible interferences with regulation on
account of quality-of-service (QoS) and reasonable network management through
compliance with national regulations and international human rights laws. The former
denotes to the range of discriminatory traffic management employed by ISPs to police
the Internet, or achieve the company’s bottom line. It will discuss if there is a right to
NN, and then proceed to establish a relationship between NN and human rights in
international Covenants, exploring the link between NN, development and human
rights. Finally it will address three main human rights concerns: Discrimination at the
physical and content layers, the new roles of carriers, and the imposition of liability
for third party content.
3.2 IS THERE A RIGHT TO NET NEUTRALITY?
The right to Net Neutrality is not expressly guaranteed in the Universal Declaration of
Human Rights (1948), neither in the Bill of Rights nor the European Convention on
Human Rights and fundamental freedoms (1950). However, the principle is regarded
as a source of fulfillment of a range of economic, political and social rights, some of
which are of the highest order (e.g., self-determination). Hence, this is the reason why
Net Neutrality almost arose to the status of a human right.” According to WSIS and
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the Council of Ministers in Europe: The Internet has become an indispensable tool for
realizing a range of human rights.170
Arguments focusing on the obligations of states vis-à-vis NN derive from the
indivisibility and interdependence of rights as an overarching framework to guarantee
NN goals: access to information, freedom of expression and opinion, just to name a
few. Under the Universal Declaration of Human Rights (UDHR), for example,
(Article 19) 171 stipulates that: everyone has the right to seek, receive and impart
information and ideas without interference, unless the law justifies it and only if
necessary under a democratic society. Any restriction on the right needs to be
narrowly interpreted subject to the requirement of transparency, proportionality and
due process as well as the pursuit of a legitimate aim. The right to privacy under
(Article 12)172 stipulates, that no one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence, whether correspondence covers
broadband is beyond the scope of this essay, however, it does include correspondence
over the Internet and telecommunication networks. (Article 3)173 on the right to life,
liberty and security is associated with technologies of freedom and media pluralism;
(Article 17)174 on the right to property; (Article 20)175 on Freedom of Assembly,
(Article 21)176 Equal access to public service and (Article 25) on the right to
170 Luca Belli, "Protecting Human Rights through Network Neutrality and safeguarding the open internet," (2013). p. 39 171 Freedom of Expression: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any medium regardless of frontiers.” 172 Right to Privacy: “No one shall be subjected to arbitrary interference with his privacy, family home or correspondence, nor to attacks upon his honor or reputation (2) everyone has the right to the protection of the law against such interferences or attacks, and although correspondence covers written letters, this term covers all forms of communication, including the internet. 173 Everyone has the right to life liberty and security. 174 Everyone has the right to own property alone as well as in association with others. 175 Everyone has the right to freedom of peaceful assembly and association 176 Everyone has the right of equal access to public service in his country.
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education, including those related to (Article 27) on the enjoyment of arts and
scientific advancements (e.g., copyright)177
Under the International Covenant on Civil and Political Rights, 1966 (ICCPR),
similar arguments apply to (Article17)178 and (Article 19)179 and (Article 14)180 and
the same holds true for the European Convention on Human Rights and fundamental
freedoms, 1950 (ECHR) for article (Article 10) 181 and (Article 8)182 and the European
Charter of Fundamental Rights (Article 17)183 on the Right to Property.
In relation to whether the Internet is considered as a human right; Vinton Cerf posits
that, the Internet is an enabler of rights only it does not constitute a human right in
itself because it does not rise to the level of an inherent human need that we cannot do 177 Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in the scientific advancements and its benefits 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 178 Right to Privacy: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation (2) Everyone has the right to the protection of the law against such interferences or attacks. 3. The exercise of the rights provided for in para. 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: For respect of the rights or reputation of others, b) for the protection of national security or public order, or public health or morals. 179 Freedom of Expression: 1. Everyone shall have the right to hold opinion without interference 2. Everyone shall have the right to freedom of expression this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice 3. 180 Prohibition of Discrimination: The enjoyment of rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with national minority, property birth or other status. 181 Freedom of Expression: Everyone should have the right to hold opinions without interference; b) everyone shall have the right to freedom of expression this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice, but subject to certain kinds of restrictions as provided by law to protect national security, order, public health and morals and as necessary within the confines of transparency and proportionality 182 Right to Respect Family life: 1. Everyone has the right to respect for his private and family life, his home and his correspondence 2. There shall be not interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society, in the interest of national security, public safety and economic well-being of the country, for the prevention of disorder, or crime, for the protection of health and morals, or for the protection of the rights and freedom of others. 183 Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions, except in the public interest and in the cases and under the conditions provided by law, subject to fair compensation being paid in good time for their loss. The Law may regulate the use of property in so far as it is necessary for the general interest.
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without (e.g. freedom from torture). Access to information and the exercise of
freedom of expression and opinion do not solely hinge on technology alone, arguing
that if we place technology in such an exalted realm, we will end up valuing the
wrong things. However, it may be considered as a civil right due to the role of
governments in providing access through principles such as common carrier.184 By
Contrast, Mark Zuckerberg, founder of Facebook, argued the opposite: Internet
connectivity is a human right. The UN also declared access to the Internet as a human
right and Commissioner Reding stated the following with regards to the recognition
of the right to Internet access:
“The New Rules recognize explicitly that Internet access is a fundamental right such
as the freedom of expression and the freedom to access information. The rules
therefore provide that any measure taken regarding access to, or use of services and
applications must respect the fundamental rights and freedoms of natural persons,
including the right to privacy, freedom of expression and access to information and
education as well as due process. In fact, Steve Peers, proposed in a report for the
European Parliament that we need a non-binding Internet.” 185
From a theoretical perspective, Bietz reconceptualization of human rights holds that,
it is not enough to make an assertion that a norm is reflecting a human right just
because it is universally recognized or simply constitutes a necessary means by which
to protect interdependent and interconnected human rights. Rather, the role in which
the norm plays to enable political participation and media pluralism is a discerning
factor in conferring a norm with a normative value. This is the reason why the
184 Vincent Cerf, "Internet Access is not a human Right " review of July 15, 2014, (2012). 185 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 23
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Internet is coined technologies of freedom and may be regarded as a human right.186
In Amartya Sen’s book on Development as Freedom, he argues that the mutually
reinforcing nature of human rights and their interconnectivity are among the
constituent components of development and subsequent attainment of freedom: the
freedom to achieve the desired goals of welfare, liberty and wealth. Any deficiency in
capability to achieve those ends through the deprivation of Internet access would
hamper the process of achieving the required end.187 As such, technology as a means
to an end is regarded as a human right, due to the reason that it secures the protection
and promotion of all other rights contingent upon it. The arrival of broadband,
however, distorted the perception, but this will be discussed at a later stage of this
chapter.
3.3 THE LINK BETWEEN NET NEUTRALITY,
DEVELOPMENT AND HUMAN RIGHTS
Non-discrimination is the hallmark of the Internet’s technical architecture and is the
common denominator between the concepts of common carrier, NN, and End-to-End
(e2e). The ability of end-users to enjoy possible access to internet-based content,
applications and services of their choice, whether they are offered free of charge (or
not) using suitable devices of their choice without discrimination is in line with
(Article 1.1) 188 of the Convention on Economic Social and Cultural Rights (1966).
186 Xiaowei Wang, "Time to think about the Human Rights Approach to Internet Access," Journal of Politics and Law (2013). p. 1-2 187 Amartya Sen, Development As Freedom (Oxford University Press, 1999). p. 5-11 188 All people have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural developments
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Further, (Article 3) of the ICESCR provides that: “States undertake to ensure the
equal rights of men and women to the enjoyment of all economic, social and cultural
rights.”189 Hence, the principle of non-discrimination can be easily inferred and
applied individually and collectively to people with the aim of constant improvement
of wellbeing. It can also be derived from the UN Resolution on the Declaration on the
Right to Development endorsed in 1986.190 The right is not so different from the
principle in terms of the goals and outcomes it aspires to achieve. One scholar noted
that NN is more of a technical and practical issue than a legal one. Hence, insofar as it
applies to the Internet and telecommunication, NN conforms to statements proclaimed
by the preamble in the declaration: “Development is a comprehensive, economic
social, cultural and political process, which aims at the constant improvement of well
being of the entire population and of all individuals on the basis of their active, free
and meaningful participation in development and in the fair distribution of benefits
resulting therefrom.”191
In 2013, Lucca Belli coined Information technology as the “Oxygen of the modern
age and the Internet as humanity’s respiratory system.”192 Departing from NN through
unlawful filtering or censorship leads to a deprivation of capabilities and
commensurate freedoms. In fact, scholars argue that cyber attacks targeting politically
dissenting groups and cutting them off entirely from Internet access will result in
creating a chilling effect in the pursuit of social justice; allowing for the gravest forms
of discrimination like torture. Moreover, throttling of Internet traffic will compromise
end-user’s capability to seek, receive and impart ideas and information in addition to
189 See Convention on Economic Social and Cultural Rights (1966), (Article 3) 190 UN Resolution 41/128 on the Declaration on the Right to Development. 191 Ibid. 192 Belli, "Protecting Human Rights through Network Neutrality and safeguarding the open internet." p. 3
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circumvent media plurality. It is for these reasons that telecommunication was
classified as a common carrier due to its importance not only in terms of connecting
people, but as a critical link in the chain of development.193 According to Petrazzini’s
article on the Political Economy Of Telecommunications Reform: there is a correlation
between economic development and access to telecommunication facilities.194 In fact,
the Geneva decisions of the WSIS established a coherent long-term link between
WSIS process and other relevant UN conferences, particularly in the area of
eradicating poverty through the Millennium Development Goals (MDGs), notably
Goal No. (8) on: Developing Global Partnership for development in which the
International Telecommunication Union (ITU) is taking active part in to ensure that
the private sector makes available the benefits of new technologies.
Moreover, the Group on Legal Aspects of Information Technology and related Law of
evidence acknowledged that: “Fundamental liberties and obligations apply to
cyberspace as any other and that, reasonable limits or exceptions to those liberties
apply as equally here as anywhere else.”195 According to Mueller: “NN must also
encompass an assertion of the broader social, economic and political values of
universal, non-discriminatory access to Internet resources among those connected to
the Internet.” 196 In looking at recent statistics from the International
Telecommunication Union (ITU) for 2013:
193 Heather E. Hudson, Access to The Digital Economy: Issues in Rural and Developing Regions, in UNDERSTANDING THE DIGITAL ECONOMY (Eric Brynjolfsson &Brian Kahin eds, forthcoming June 2000), available at: http://mitpress.mit.edu.html 194 See, e.g., BEN A. PETRAZZINI, THE POLITICAL ECONOMY OF TELECOMMUNICATIONS REFORM IN DEVELOPING COUNTRIES: PRIVITATION AND LIBERALIZATION IN COMPARATIVE PERSPECTIVE 28 (1995). 195 Commonwealth Secretariate, "Law in Cyberspace," (Malborough House, 2001). p. 27 196 Mueller, "Net Neutrality as a Global Principle for Internet Governance." p. 7 (This also extends to providing access to persons with disabilities)
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“Only (2.7) billion people are using the Internet, which corresponds to (39) per cent
of the world’s population. The developing world is home to about (826) million
female internet users and (980) male million internet users, hence the gender gap is
more pronounced in the developing world where (16) per cent fewer women use the
internet than men as compared to (2) per cent in the developed world. Furthermore,
(90) per cent of the (1.1) billion households not connected to the Internet are in the
developing world. Broadband penetration, on the other hand, stands at (48) per cent
in America; (68) per cent in Europe; (46) per cent in Asia and (19) per cent in the
Arab World and (11) per cent in Africa.” 197 By contrast, “there are (6.8) billion
mobile-cellular subscriptions”198
It was, therefore, argued at IGF that universal service and digital divides are
more important than NN. But, the response was that, there is a greater need for
NN protection, as it will bring in the words of Christopher Marsden: filtering
and censorship to light. As such, the Internet Governance Forum (IGF) is
addressing NN related matters from a human rights perspective in line with
WSIS recommendations.
3.4 DISCRIMINATION AT THE CONTENT AND PHYSICAL
LAYERS
The debates on Network Neutrality refer to the regulatory strategy aimed at framing
network management practices so that openness of the Internet is safeguarded,199 and
197 ITU, "The World in 2013: ICT Facts and Statistics-ITU fact sheet." 198 Internet Governance Forum, "Workshop (58) on network neutrality:Examine the issues and implications for development." 199 Belli, p. 11
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digital rights are protected. This is very much associated with the positive definition
of NN, however, recent revelations with respect to network management and access
to information give rise to concerns that the open, decentralized and anonymous
nature of the Internet is under threat. The reasons are first and foremost related to the
negative effects of NN associated with the two-tier service model (pay-for-play). This
is seen to be imposing undue restrictions on access to information, freedom of
expression, in addition to undermining people’s privacy online. The Report of the UN
Special Rapporteur in 2011 on the promotion and protection of the right to freedom of
opinion and expression, Frank La Rue highlighted the ways in which government
censorship in areas outside international human rights law has contributed to the
breach of the principle.200 Second, it is creating an un-even playing field for end-
users, through the prioritization of commercial traffic over other forms of content, the
consequences of which will limit the public services value of the internet as a medium
for one-to-many communication, that has revolutionized democratic participation and
made possible for transparency and accountability measures to be taken against
autocratic or powerful regimes. Thirdly, it will create barriers to a previously barrier-
free market entry and disrupt the virtuous cycle of innovation that has contributed to
the rise of companies like: Google, YouTube, Skype and the rest, without permission
from ISPs. Finally, a price-based approach to content will crowd out politically viable
content that keeps the consumer/citizen well informed on the issues of the day.
However, discrimination, from a human rights perspective, is not only impacting end-
users at the content level, but intermediaries at the infrastructural level. They address
200 UN General Assembly, "Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue," (2011). p. 1 These include: Arbitrarily blocking or filtering internet-based content; criminalization of certain expression; imposition of intermediary liability; disconnecting users from internet access, including on the basis of intellectual property rights law; cyber attacks and inadequate protection of privacy and data protection.
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Internet access through regulation that limits service-based competition as well as
facilities-based competition. The adoption of one over the other is to a large extent
influenced by economic considerations on behalf of the provider to either buy or build
the network. The two approaches are distinct in terms of the likelihood profit each is
expected to generate. An incumbent may choose to provide attractive wholesale
services for an entrant in order to discourage that entrant from building a network.
This is achieved through Service-based competition, which is associated with the use
of an incumbent’s last mile network to provide the service through Local Loop
Unbundling (LLU). That is, allowing multiple telecommunication operators to use
connections from telephone exchange to a customer’s premise for the provision of
services. 201 On the other hand, facilities-based competition is associated with
fragmenting end-users consumption levels, so called niche-markets, rather than
fragmenting networks. The former is seen to limit investments in broadband,202 and
“to drive lower prices and greater penetration in the short-term,”203 whilst the latter is
seen to increase investment in infrastructure. However, there is not much evidence to
support these arguments. Each, however, is a substitutable strategy for the other and
can be employed for maximum profit. The welfare gains derived from adopting one
over the other is also not supported by evidentiary data, however, the idea is anchored
in the level of demand an incumbent, or a service provider is able to create for
Internet services.
In 2005, in an article titled Beyond Network Neutrality, Christopher Yoo argued that
NN is a matter of vertical integration. He highlighted the vertical integration theory 201 Marc Bourreau and Pinar Dogan, "Services Based vs. Facility-based Competition in Local Access Networks," Information Economics and Policy 16, no. 2 (June 11, 2003). p. 3 202 Internet Governance Forum (IGF), "Workshop 58: Net Neutrality- Examining the Issues and Implications For Development," IGF, http://www.intgovforum.org/cms/2008-igf-hyderabad/event-reports/72-workshops-17032/370-workshop-58-network-neutrality-examining-the-issues-and-implications-for-development-97503340. p. 3 203 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 46
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that holds any vertical chain of production will only be efficient if every link is
competitive. As a result, proponents of NN are focusing on the wrong policy problem.
Instead of driving their attention to discrimination in the content and application layer,
they need to focus on increasing competition in the last mile and consequently
converting the concept of NN to network diversity.204
Figure 1: The following are types of Network Management Practices conducted by ISPs
NO. TYPES OF NETWORK MANAGEMENT PRACTICES
1. Blocking, filtering, throttling, slowing down and monitoring of internet-based
content and services, especially application such as: Peer-to-Peer (P2P), VoIP
(Skype).
2. Deep-Packet Inspection (DPIs) techniques: A technique that infringes on
personal privacy and undermines data protection
3. Denial of Service Attacks (DoS): Such techniques target politically dissenting
groups and cutting them off entirely from accessing the internet, all of which
refer to technical or administered methods undertaken on account of national
security or copyright law.
204 Yoo, "Beyond Network Neutrality."p. 15-16
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3.5 THE NEW ROLES OF INTERNET INTERMEDIARIES
Internet regulation is evolving to the extent that it is granting private conduits control
of critical pathways of communication.205 In previous years, this was unimaginable as
the primary role of carriers was solely confined to transmitting content without
interruption. Because of their neutral function, they were compared to the three wise
monkeys: they saw no evil, they heard no evil and they spoke no evil.”206 The only
means by which content regulation was administered online was through a Notice and
Take Down regime (NTD) that forced ISPs to remove unlawful content in conformity
with offline/physical legislation.207 Today, however, ISPs are being called upon by
government to assume public responsibility with a view to police the Internet against
diverse violations committed online: libel, copyright infringements, criminal and
fraud. As one scholar noted, the gatekeepers of today may not be the same as the
gatekeepers of tomorrow. But, “the potential for abuse of this private power of a
central avenue of communication cannot be overlooked.”208 As commercial entities,
they are more driven by commercial interests and the company’s bottom line, rather
than public welfare. Moreover, private intermediaries, unlike public authorities, are
not subject to the obligations and responsibilities imposed on them by international
law. Under human rights law, there are rules that prescribe when restrictions are
allowed, and under which criteria in order to “protect, respect and remedy”
individual/group rights, much of which are outlined under (Article 19.3) of
205 Dawn C. Nunziato, Virtual Freedom: Net Neutrality and Free Speech in the Internet Age (California: Stanford University Press, 2009). p. 1-2 206 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 105 207 Ibid. 208 Turner Broadcasting System Inc. v F.C.C, 512 U.S.622,657(1994).
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UNDHR.209 These have to be complied with by governments in order to ensure that
the rule of law is in check. It is in this framework of understanding that Frank la Rue
argued against public responsibility being delegated to a private entity and in favor of
an independent authority, as carriers need to remain objective in their role as
gatekeepers and watchdogs of a well-functioning democratic society.
Additionally, the boundaries of law enforcement and liberty are not so clearly
defined.210As such, the Council of Europe, together with the World Wide Web
Consortium began to develop content regulation recommendations and a platform for
Internet Content Selection (PICS). The result of which, produced the Cybercrime
Convention and PICS, which sought to enable the control of content at the device
level by incorporating filtering criteria into software code.211 According to Lessig and
Marsden: “the software that makes the Internet work is a pre-existing law of the
Internet, just as gravity and other laws of motion that regulate humans who interact
via the internet.”212 It is, therefore, desirable to place content filtering in the hands of
the end-user through code, rather than to impose intermediary liability for third party
content.213 And this was the recommendation provided by the Ministers at the 1997
Bonn Conference, which later produced the safe-harbor principle to exempt carriers
from liability.
209 See Universal Declaration for Human Rights, 1948 210 Marsden, Net Neutrality: Towards a Co-Regulatory Solution. p. 106 211 Ibid. p. 107 212 Ibid. p. 106 213 "The Bonn Ministerial Declaration", (1997). para. (41-42)
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3.6 THE IMPOSITION OF LIABILITY FOR THIRD PARTY CONTENT
Internet Service Providers have been exempted from liability for third party content in
many parts of the world. This is because of two reasons: the first is related to their
classification as common carriers, which subjects them to the legal requirement of
non-discrimination. The second is because they are requested to play a new role in
policing the Internet in collaboration with government. This tends to increase the
scope of control over traffic transmitted in their networks, which may result in either
positive or negative consequences on constitutional freedoms. In the words of Dr.
Jovan Kurbaliji: “Technology is neither bad, nor good, nor neutral, but the user
determines its impact.” 214
The dark side of the Internet, which has jeopardized the trust-to-trust and best-effort
transmission associated with (e2e), is imposing liability on Internet Service Providers
for third party content and copyright violations. Legislations in Korea and Turkey, by
way of example, have imposed liability for third-party content on defamation-related
publications.215 Given the openness and accessibility of the Internet, as an egalitarian
platform that permits media pluralism, the criminalization of defamation by human
rights activists is considered unlawful. This view was supported by Frank Law Rue,
UN Special Rapporteur for the right to freedom of opinion and expression. In the US,
on the other hand, the Communication Decency Act established immunity from
liability for third party content on grounds of libel and slander, and the Digital
Millennium Copyright Act exempted intermediaries from liable for copyright
214 (IGF), "Workshop 58: Net Neutrality- Examining the Issues and Implications For Development."p. 3 215 Law 5651 on the Prevention of Crime. It also grants authority to an agency to block websites hosted outside turkey.
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violations of third parties on their network through the notice-and-takedown regime
(safe harbor provisions). 216 These were the results of Ministers’ recommendations at
the Bonn Ministerial Conference that underlined: “The importance of clearly defining
the relevant legal rules on responsibility for content of the various actors in the chain
between creation and use. They recognize the need to make a clear distinction
between the responsibility of those who produce and place content in circulation and
those of intermediaries.”217 They also stressed that:
“The rules on responsibility for content should be based on a set of common
principles so as to ensure a level-playing field. Therefore, intermediaries like
network operators and access providers should, in general, not be responsible
for content. This principle should be applied in such a way that intermediaries
like network operators and access providers are not subject to unreasonable,
disproportionate or discriminatory rules. In any case, third party content
hosting services should not be expected to exercise prior control on content,
which they have no reason to believe is illegal. Due account should be taken
of whether such intermediaries had responsible grounds to know and
reasonable responsibility to control content.”218
216 Digital Millennium Copyright Act of the USA, Section 512 provides safe harbor for intermediaries in addition to the EU under the E-Commerce Directive. 217 "The Bonn Ministerial Declaration", (1997). para. (41) 218 Ibid. para. (42)
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3.6 CONCLUSION
The disruptive arrival of broadband is conflating arguments between information
technologies as a human right with convergence as a human right. The latter is
characterized as a multisided market with implications on price and business models.
The concept of NN, as distinct from network diversity, can be framed in terms of the
human rights outcome they both aim to achieve. In essence, they are similar. To this
extent, the revival of NN and its re-conceptualization in both positive and negative
nuances are, at worst, paving the way for an international standard of treatment of
protection to emerge for citizens against human rights and commercial abuses in
cyberspace. Hence, it is a form of protection against hybrid forms of censorship by
government and private corporations, whose role is being uncertainly transformed by
the pressing demands of globalization and the company’s bottom line. In fact, it is
somewhat similar to the fair and equitable standard of investment protection under
international investment law, or the Most-favored-Nation Treatment MFN under the
World Trade Organization and Investment law.
The backing and support of International Human Rights laws, alongside soft laws and
principles at regional, local and international levels, is standing the concept in good
stead for valorization as an international norm, civil law perhaps, or otherwise. Also,
the fact that policy makers are required to govern the Internet necessitates their
understanding of cyber-related principles and their implications on the political
economy in order to govern transnational relations effectively. This is true for
developing and least developed countries; as it will create awareness and
understanding, where much of the digital divides exist. However, predicaments facing
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the concept in the future fall in the context of, international arbitration, on the one
hand, and the provision of remedies to compensate for NN deviations from which
Human Rights Courts may not be able to support. So, the case to be made here is that
there is a movement underway to provide for a normative standard except it has not
been validated through state practice proper, however, the important aspect is that the
principle is there to ensure that the benefits of electronic communications are not
hijacked by commercial considerations; rather a fair and equitable equilibrium needs
to be struck between commercial interests and the public service value of broadband
technologies.
It is so far evident that large discrepancies in access and services within and between
countries will undermine the multi-lateral component of cooperation at local, regional
and international scales to the extent that it will mitigate the positive effects generated
by electronic communication, democratic representation and internet governance.
Moreover, investments in infrastructure build-out to increase broadband capacity will
also be determined by the digital divides that are more or less influenced by the
political and socio-economic policy goals of the state. The next chapter will discuss
the concept of NN from a commercial perspective.
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CHAPTER 4: NET NEUTRALITY IN TRADE AND
INVESTMENT LAW
4.1 INTRODUCTION
As the Internet is a space governed by commercial and non-commercial transactions,
it is only logical that legal instruments affecting commercial transactions in the
physical world influence its development in the virtual world. Commercial abuses in
the areas of: online property, Internet resources and e-commerce are to some extent
unsatisfactorily addressed in the context of trade by current legal instruments and they
are as important for the investor and investments of investors in the virtual world as
they are in the real world. In fact, some scholars argue in favor of a sui generis
approach to protecting computer software programs claiming that the current scope of
copyright protection is inept:
“We need a new system that borrows appropriately from copyright law, patent law,
and utility model law-perhaps slavish imitation law- and combines selective features
of each, and new features where the nature of software dictates it, to provide a form
of legal protection congruent to the subject matter, the commercial needs of industry,
software professionals, and software users, and the interest of the public” 219
While this section will not attempt at devising a square peg for a square hole, its
purpose is merely to highlight that this legal vacuum in the protection of technologies
and investors online needs to be addressed given the Internet’s globalized function as 219 Diane Rowland and Elizabeth Macdonald, Information Technology Law, 2nd ed. (Great Britain: Cavandish Publishing Limited, 1997). p. 13
78
a medium of communication, e-commerce and trade. As such, This chapter will seek
to analyze some Standards of Treatment of Protection in public international law,
trade law and investment law with a view to draw comparisons between their
normative content, scope of application and source of law, which may be derived
from various existing and international legal instruments and principles. While the
doctrine of Network Neutrality (NN) is neither established in treaty law nor
customary international law, the idea behind it is to compare it to existing standards of
treatment of protection and their development overtime through treaty practice and
tribunals’ interpretations, with the view to ascertain that it is an evolving customary
norm that may undergo similar developments in its evolution and crystallization as
the Fair and Equitable Treatment standard (FET), Minimum Standard of Treatment
(MST), National Treatment (NT) and Most-Favored Nation (MFN). It is intended to
give a normative perspective in order to formulate a coherent understanding of its
future position as an evolving norm with normative implications.
4.2 ANALOGIES OF NET NEUTRALITY TO STANDARDS OF TREATMENT OF PROTECTION
4.2.1 The Fair and Equitable Treatment Standard (FET):
The Fair and Equitable Treatment Standard is a standard of protection that is applied
to protect investors and the investments of the investors in a host country under
79
international investment law.220 The purpose is to protect foreign investments in a
host country against the conduct of the host State in relation to “nonfeasance,
malfeasance or misfeasance.”221 It is supposedly an absolute principle that guarantees
fair and reasonable treatment independent of the host State’s domestic laws, or on its
treatment of its own nationals or commitments to third States. Schill purport that it is
an embodiment of the rule of law. Its normative content has been widely contested
and legal scholars like Schill and others argue that: it is an abstract standard without a
consolidated core meaning and has no uniform application. Initially, it is not intended
as a blanket of insurance against risks but as standard of treatment to protect against
the abuse of government power, as a manifestation of the principle of good faith, as
good governance norms, and as reflecting general principles of law: abuse of rights,
estoppel, the jurisprudence of the European Court of Human Rights (ECtHR),
including the development of legitimate expectations in domestic law.222
Following an examination of its application in different treaties, the FET proved to be
more complex and complicated than absolute or objective. First, it depicts the
influence of politics in the development of law and the role of the U.S as a hegemonic
intellectual powerhouse in shaping the direction of debates and pushing them through
by mediating concepts of good governance and “democratic governance” 223 to shape
contemporary international law in the context of a global economy.224 This was
exemplified by the U.S interpretation of the minimum standard of treatment in
customary international law and equating it to the Fair and Equitable Standard. This 220 M. Sornarajah, The International Law on Foreign Investment, ed. 3rd (New York: Cambridge University Press, 2012). p. 347 221 Andrew Newcombe and Lluis , Law and Practice of Investment Treaties: Standards of Treatment (Netherlands, Kluwer, 2009). p. 235-252 222 Ibid. 223 Henry J. Steiner, Political Participation as a Human Right (Harvard Human Rights Yearbook, 1988). p. 77-134 224 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (New York: Cambridge University Press, 2005). p. 246
80
was achieved when the Free Trade Commission (FTC) issued Notes of interpretation
of Chapter (11) of NAFTA that provided:
1. Article 1105 (1) prescribes the customary international law minimum standard
of treatment of aliens as the minimum standard of treatment to be afforded to
investments of investors of another party.
2. The concept of Fair and Equitable Treatment and full protection and security,
do not require treatment in addition to, or beyond that which is required by the
customary international law minimum standard of treatment.
3. A determination that there has been a breach of another provision of NAFTA,
or of a separate international agreement, does not establish that there has been
a breach of Article 1105 (1)
Secondly, the Fair and Equitable Treatment also sheds light on the multifaceted
aspects of law development and jurisprudence, in general, and treatification as the
substitute of custom,225 in specific. Schill stated, for example, that bi-lateral regimes
tend to establish rules that affect custom. The practice of tribunals also eroded the
lines between customary and treaty provisions and the relationship between the two.
In the Noble Ventures, Inc. v. Romania,226 a case arising under the US-Romania
Bilateral Investment Treaty (BIT), 227 the tribunal found that fair and equitable
treatment “to be a more general standard, which finds its specific application in inter
alia the duty to provide full protection and security, the prohibition and arbitrary
225 Kelly, "The Twilight of Customary International Law." p. 449 226 Noble Ventures, Inc. v. Romania, ICSID case No. ARB/01/11, Award (Oct 12, 2005) <http://ita.law.uvic.cca/documents/Noble.pdf> accessed July 27, 2014 227 Treaty concerning the Reciprocal Encouragement and Protection of Investments, US-Rom., May 28, 1992, S. TREATY DOC.No 102-36 (1992)
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discrimination measures and the obligation to preserve contractual obligations
towards the investor.” 228
To conclude, the Fair and Equitable Treatment Standard (FET) stands at the cross-
roads of time between eighteenth and nineteenth century understandings of the law as
constituting a set of moral principles and values, one the one hand, and modern day
prudential analysis, on the other, which explains the rationale of rule-making by
States as clearly reflective of their interest. Today the role of customary international
law, so called new customary international law, is playing a decisive role in
conferring legitimacy to the norms formulated by States through multilateralism and
their participation in processes and procedures that are designed to reinforce their
sovereignty and secure adequate policy space for regulation. While there is lack of
consensus on the norm, but not consent, this does not necessarily hamper its
development as a norm of customary law, but not customary international law. This is
due to arguments advanced by scholars like Sornaraja and Brownlie that customary
law can be created as between States, on regional basis due to shared values and
interests. 229 The development trajectory of NAFTA substantiates this view. For
example, it eliminated the umbrella clause from its earlier Bilateral Investment Treaty
(BIT), and then proceeded to redefine the liability threshold by issuing a clarification
note in this regard. It is emerging as a customary law that may be calibrated to suite
the States requirements and interests.
228 Noble Ventures, Inc., para 182 229 M. Sornarajah, The International Law on Foreign Investment. p. 333
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4.2.2 The Minimum Standard of Treatment (MST)
The expansion of trade and business investments by capital exporting states like the
U.S and UK following the period of decolonization and World War II was
accompanied by the development of international law on State responsibility for the
protection of aliens, much of which focused on the protection of aliens against denial
of justice and violence, not investments and investors, although there was slow
consensus emerging on the need for just compensation to be awarded for the
expropriation of property. 230 The international law on State responsibility produced a
minimum standard of treatment to protect aliens and their property in foreign
countries. Since then, it became customary for foreign investors to be protected
through diplomatic protection when injured through acts contrary to international
law.231 The Minimum Standard of Treatment was, thus, established and set the
baseline of treatment to foreign investors to a level equal to an ordinary standard of
civilization.232 Going below that level gave rise to State responsibility. However, the
issue of defining the minimum standard of civilization was very controversial and
was, therefore, subject to different interpretations by tribunals, particularly with
respect to what constitutes the minimum level of treatment, whether it is a separate
standard or two, particularly when it co-exited with the FET.
Over the years, however, and through its inclusion as a treaty-based provision under
investment law, the norm evolved into a standard with functional properties and
230 Newcombe and Paradell, Law and Practice of Investment Treaties: Standards of Treatment. p. 12 231 S Subedi, International Investment Law. Section D: The case-law on the treatment of foreign investment (University of London Press, 2005).p. 6 232 This was maintained by the US and the Mexico General Claims Commission that: “Equality of treatment with national detainees is not the ultimate test of propriety of the acts of authorities in the lights of international law. The test is whether aliens are treated in accordance with ordinary standard of civilization.
83
prescriptive elements as per State and investor requirements. On the one hand, it may
determine the liability threshold for State responsibility to arise by actions or
omissions of actions in breach of the standard of protection. This may be defined by
the Neer threshold, 233 that indicates: in order to constitute an international
delinquency, the treatment of an alien should amount to an outrage, to bad faith, to
willful neglect of duty, or to an insufficiency of governmental action so far short of
international standards that every reasonable and impartial man would readily
recognize its insufficiency. On the other, it may determine the scope of its application
if conjoined with the Fair and Equitable Treatment (FET). In doing so, the standard
may cover a wide range of procedural or substantive protections: Denial of justice,
lack of due process, lack of due diligence and instances of arbitrariness, transparency
and discrimination, full protection and security, as well as legitimate expectations.
Today, the standard is subject to much controversy between developed and
developing countries as the minimum level of treatment required by developed
countries may not be readily met by developing countries due to large discrepancies
in country resources, capabilities and capacities that may render the application of a
level of ordinary standard of civilization difficult.
233 Maria Kostyska and Ignacio Torterola, "International Arbitration Case Law," p.1-3 (The Neer Claim, or the Neer threshold is the outcome of the US Commissioner’s decision in the L. Fay H. Neer (USA) v United Mexican, Opinion of Commissioners of Oct 15, 1926 IV R. INT’L ARB AWARDS 60, para 1. The threshold served to ascertain the contours of what constitutes denial of justice in international customary law: the treatment of an alien, in order to constitute an international delinquency should amount to an outrage, to bad faith, to willful neglect of duty or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency)
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4.2.3 The National Treatment Standard (NT)
The National Treatment Standard (NT) is an essential principle of the multilateral
trading system of the WTO. 234 It is also used in the context of investment law, except
it differs in its application between the two regimes. And while this section does not
attempt at describing the difference, the idea is to highlight its purpose. The content of
the standard under investment law accords to foreign investors in like circumstances,
or like situations, treatment no less favorable than that which the host State accords to
its own investment to promote fair competition. Hence, it is a relative standard that
requires treatment of foreign investors on equal footing with national investors in
similar products or category of products or similar circumstances. 235 It is a treaty-
based standard that may allow for discrimination in circumstances where public
health, national security or cultural heritage, just to name a few and it may invoke
State responsibility if a breach of the content was established. By including it as a
stand-alone provision or in combination with other standards of treatment of
protection, the national treatment standard can determine the level and scope of its
application through textual interpretations of the NT provision in line with the VCLT
(Articles 31 and 32). This may cover the pre/post establishment phase of an entity.236
However, in certain circumstances it may be uncertain as to whether this permission
in discrimination is confined to de-jure discrimination or de-facto discrimination
234 UNCTAD, "National Treatment," in UNCTAD Series: On Issues in International Investment Agreement (New York and Geneva1999). p. 8 235 Ibid. p. 3 236 For example, The BIT between Germany and Namibia stipulates in (Article 2) that each Contracting party shall promote as far as possible investments by nationals or companies of the other contracting party and ‘admit such investments in accordance with its legislation.’
85
through the imposition of performance requirements (e.g. licensing requirements).237
In short, it functions as a safety valve on which host States can rely upon to preserve
their prerogative in setting economic policy, maintain their sovereignty to control
foreign investors or investments in addition to protect themselves against the
ambiguous expectations set out by the broadly formulated, opaque provisions of the
FET standard. This can be achieved through exceptions 238 with the view to level the
playing field for both local and foreign investors to ensure fair competition.
4.2.4 The Most-Favored Nation Standard (MFN)
The Most-Favored-Nation Treatment is the cornerstone of the World Trade
Organization (WTO). 239 It has formed part of international economic treaties for
centuries,240 and was later incorporated into the WTO to accord treatment in a manner
at least as favorable as that accorded to third parties.241 In other words, it requires the
treatment of like products and like services of a State no less favorable than that it
accords to third parties’ like products and services. While it differs in application
between the General Agreement of Tariff and Trade (GATT) and General Agreement
on Trade in Service (GATS), the purpose of MFN clauses are generally the same: to
treat like products/services the same.
237 UNCTAD, "National Treatment." p. 1-12 238 Generic exceptions, specific or country-specific 239 UNCTAD, "Most-Favoured Nation Treatment," in The Pink Series (UNCTAD website2010). p. 1-3 Several International treaties in the 17th century incorporated MFN provisions such as the Anglo-French treaty negotiated in 1860, including others such as the US Friendship, Commerce and Navigation treaties. 240 Georg Schwarzenberger, International Law as applied by International Law and Tribunals, 3rd ed., vol. 25 (London: Cambridge University Press, 1957). p. 243 241 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law, 2nd ed. (United Kingdom: Oxford University Press, 2012). p. 206-207
86
Under investment treaties, however, an MFN clause requires treatment of foreign
investors by a host state treatment no less favorable than it accords to third States.242
It is a broader form of regulation that requires the treatment of investors/investments
in like circumstances, whereas in trade law it treats like products and like services. As
with earlier mentioned standards of treatment, the MFN is a treaty-based provision
that follows the plain and ordinary meaning approach to interpretation in line with
(Articles 31 & 32) of the VCLT and is a relative standard governed by the by the
Latin principles: Ratione materiae and Ejusdem Generis. 243
It is not, however, reflective of customary international law, 244 although it may be
confused as such due to two reasons: Its extended reach and application as a “multi-
lateral-linkage bargaining extending any trade concession a country makes with one
party, without any reciprocal benefit, to all other WTO members,” 245 as well as the
possible extension of the administration of justice under BITs to the procedural rights
of international dispute settlement, unless otherwise noted through exceptions
anchored in public policy considerations: i.e., fork in the road, consent to the
jurisdiction of the International Centre for Settlement of International Disputes, etc. It
may invoke State responsibility through a breach of a substantive right in treaty law
that may subsequently determine the most favorable procedural right to be invoked
depending on the clause of the MFN provision.246
242 Ibid. 243 Ratione materie operates according to the requirement of sameness, whereas Ejusdem generis the benefit granted would depend upon the right granted. 244 Stanley Hornbeck, "The Most Favoured Nation Clause," American Journal of International Law 3, no. 4 (1909). p. 395-403 245 Picciotto, Regulating Global Corporate Capitalism. p. 301 246 Maffezini v Spain, ICSID Review Foreign Investment Law Journal ARB/97/7 (2000).The decision on jurisdiction highlighted a possible application of the MFN treatment to import International Settlement of Disputes Solutions (ISDS) from third treaties considered more favorable by the claimant, so called forum shopping.
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Such elasticity in the interpretation of an MFN clause reflects the dichotomy of
procedural/ substantive rules that created significant controversies as to whether an
(MFN) clause can override existing treaty obligations, apply to procedural matters, or
be subject to extra-legal rules 247 or special rules of interpretation, and hence,
constitute in and of itself an instrument of consent, rather than overriding the consent
agreed to by the parities to the treaty. To this extent, the definition of the limits of
treatment and favorable is important in the provision of an MFN clause so as to limit
the discretionary power of tribunals and prevent “forum shopping.”248
4.2.5 The Normative Underpinnings of Network Neutrality
Initially, Sidak’s definition of NN as a “shorthand reference for a proposed regime of
economic regulation, would displace or subordinate a substantial portion of
telecommunications regulation.”249 This implies legal and regulatory developments
distinctly different from earlier regulation of previous technologies. The subsequent
transparency requirement imposed by National Regulatory Authorities (NRAs) to
ensure consumer welfare, together with fair competition among application providers,
reasonable network management and quality of service guarantees denote to early
beginnings of legal configurations being formulated for the administration of justice
247 Martins Paparinskis, "MFN Clauses and International Dispute Settlement: Moving Beyond Maffezini and Plama?," ICSID Review: Foreign Investment Law Journal 26(2011). p. 20 (Whether extra legal arguments could be relevant for the interpretation of the MFN rule was advanced by the US in relations to its nationals in Morocco where it relied on the existence among European and American states of common needs and interests, commercial and otherwise, the substantial identity of civilizations, cultures, legal systems and concepts and the common foundation of jurisprudence and socio-political development, contrasting them with disparities between the social order and the legal system of the Mohammedan States and their own) 248 Ibid. Forum shopping is an activity that is carried out under investment law to import investor-State Settlement provisions from other treaties. 249 Sidak, "A Consumer Welfare Approach To Network Neutrality Regulation of the Internet." p. 350
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in cyberspace. As with standards of protection under investment law, the
administration of justice may be extended to commercial matters if clearly articulated
in Bilateral Investment Treaties (BIT) clauses and multilateral treaty provisions.250
To begin with, the scope and content of the concept is currently broad and abstract
with wide-reaching repercussions across the political, economic, social and normative
divides worldwide. This is due to the pervasive and ubiquitous nature of
communication technologies. According to academic literature, the doctrine addresses
issues of non-discrimination through regulation that calls for fair competition and
transparency requirements that are today imposed on carriers by NRAs for consumer
welfare. Other interpretations entail, that the positive definition of NN in which it
addresses issues of discrimination on the basis of quality-of-Service, price or
reasonable network management. In discussing what non-discrimination should look
like, Barbra Van Schewick stated that there are two types of discrimination:
application-specific and application agnostic. The latter requires broadband access
providers to treat like traffic alike and bans specific discrimination targeting specific
applications, content, services and uses or class of application. This strikes a
resemblance between NT and NN as well as MFN and NN in that it requires a factual
situation to be determined based on like products and like services, or even like
investors and the manner and extent in which they can be applied. There is, however,
no determination of category the FRAND measure applies to. But, since GATT and
GATS provide for the general treatment of trade in goods and services, the FRAND
measure may provide for protection of online investors. The FCC’s Open Internet
250 Paparinskis, "MFN Clauses and International Dispute Settlement: Moving Beyond Maffezini and Plama?." p. 28
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Rules bans discrimination that is unreasonable.251 Secondly, the FCC’s decisions on
NN issues, particularly in relation to what constitutes reasonable network
management states that: minimally arbitrarily practice, that unduly squelches the
dynamic benefits of an open and accessible Internet constitutes unreasonable network
management. Hence, the basis of a nondiscrimination requirement in this context is
not solely restricted to price but on practices that deny the benefits of Internet access
as a public good and communication vehicle, which may be extended into realms of
human rights violations, some of which are of the highest order as the right for self-
determination and development, access to information, freedom of expression, just to
name a few. Further, the source of the law in relation to NN is anchored in both: soft
law, hard law, and human rights law: The US Open Internet Order and the four
Internet Freedoms, the EU Open Internet Resolution and COMPACT principles for
Net Neutrality and Internet Governance endow NN with a character of normativity.
Thirdly, the proposed measure to discriminate based on fair, reasonable and non-
discriminatory grounds (i.e., the contemporary definition of common carriage) may be
conferring a MST or high standard of treatment relative to the FET. As such, it may
result in conferring substantial and procedural rights under international and/or civil
law if the doctrine is incorporated into a treaty or contract. It is, therefore, safe to
argue that NN may complement or supplement existing standards of treatment of
protection of investors or investments of investors to be applied in cyberspace by
virtue of the FRAND measure proposed and the non-discriminatory and transparency
requirements imposed by NRAs. This reflects a combined view of the Fair and
Reasonable treatment requirement, together with the NT, which may allow for de-
facto or de-jure discrimination, depending on how it is articulated in a treaty 251 Schewick Van, Network Neutrality and Quality of Service: What a Non-discrimination Rule Should Look Like. p. xii
90
provision and whether an inclusion of exceptions is provided. As regards issues of
QoS, debates are setting the minimum standard for QoS between 2-3Mbps 252 to be
guaranteed, charging consumers who consume or demand more bandwidth above the
minimum standard requirement extra. This again is reflective of the MST and the
manner in which parameters are defined. In considering Marsden’s view of NN that it
could bring filtering and censorship to light, it is easy to argue that NN is slowly
emerging as an international norm that may protect against human rights and market
power abuses by the private/public sectors.
CONCLUSION
This research paper does not provide conclusive evidence as to whether NN is
reflective of customary international law. Instead, it sheds light on an evolutionary
process that is not solely confined to the development of technologies and algorithms
in cyberspace, but to the development of norms under customary international law.
The fast pace of development technologies in the context of globalization is no longer
giving a prominent role for customary international law to play in maintaining a safe
social order as it is incapable of evolving quickly. Indeed, the E2E algorithm/norm
that ensures intelligence to reside at the edges of the network has created patterns of
online behavior that is reflective of custom. In fact, it is custom except of an epistemic
nature, in which Steven Hatcher describes as corresponding to preexisting social
practice. Conversely, the QoS algorithm shifts the power from the edges of the
network, where intelligence resides with the individual to the core and into the hands 252 BEREC suggests that the levels being discussed currently range between 512Kbps and 2 Mbps, although some countries are more ambitious.
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of government, where obligations lie. The difference in time between the
development of the old and new algorithms resulted in the creation of diverse forms
of rationalization and processes for institutionalization and rule making. The QoS
algorithm may, therefore, emerge into an evidentiary and sanction-driven norm from
which conformity hinges not on preexisting social practice, but on standards of
acceptable and non-acceptable behavior with an overarching objective to achieve
more rationalized and controlled means of affecting social order online. According to
Hetcher: a sanction-driven norm is the dominant type of norm in bargaining and non-
bargaining contexts that conforms to an institutionalist view of international relations.
As such, it is important that developing and least developed countries do not fall
victim to the norm through acts of narrow self-interest or lack of understanding or
awareness.
While politicized and polarized in the U.S, the norm is still in its embryonic stage of
development as evident by the lack of consent over its normative content, but also by
the absence of substantial dissent in this regard. This is not to suggest that its
normative content is lacking altogether; but to indicate that a fragile consensus is
emerging on the need to depart from an absolute interpretation of the principle in
order to permit restrictions and provide preferential treatment for the provision of
quality-of-service and reasonable network management. In essence, Network
Neutrality focuses on who controls power in cyberspace and to what degree is
regulation of cyberspace permissible. The intention is not only to collaboratively
work on combating internet-related problems, but also to afford protection to private
sector investments, as it is one critical element in the equation on NN. The US Federal
Communications Commission (FCC), whose position on this matter will weigh
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heavily in the balance come next October, and perhaps serve as a determining factor
in world politics and legislation, as has been earlier achieved with NAFTA.
At the political level, the principle of NN is currently caught up in the web of
informal processes that are today associated with international law-making, but is not
restrained by it as it is one step, among many, in the evolution and development of
norms under international law. The globalization of ICANN necessitates the
development of such a principle in order to identify ways and means of governing
cyberspace efficiently. In considering that a co-regulatory model of regulation does
not come with constitutional guarantees; an international norm as NN may give rise to
State Responsibility in the absence of administration of justice, particularly in view of
the fact that socio-economic rights are viewed as the responsibility of the State to
respect, protect and fulfill. Since the physical world is greatly governed by standards
of treatment of protection for investors and investments alike, there is no reason not to
include another standard of protection for end users in cyberspace. After all, NN
might bring filtering and censorship to light as noted by Marsden.
With respect to evidence of state practice, it is worth noting that according to Boyle
and Chinkin: applying the criteria for establishing custom is not a scientific process,
the accuracy of which can be measured, but evidence of rules on NN were articulated
in the EU, the US and the UK under the 2003 Communications Act and codified by
law in the Netherlands, and Chile in addition to the declaration of telecommunications
and Internet as common carriage. This provides for patterns of rationally governed
behavior that is initiated and maintained in groups by acts of conformity. Hence, its
legal standing may be derived from soft law, hard law and even human rights law by
virtue of the role that electronic communications play as watchdogs in a democratic
society. However, the case law revealed in the US indicates that NN is evidence of
93
practice perceived as law in the Madison River Communications vs. FCC Case,
whereas the opposite was proved in the Verizon vs. FCC Case. This reflected a
dichotomy between US convictions of the legality of NN as one articulated for
political decision-making versus another for dispute settlement. The latter reflects a
positivist approach in the interpretation of the law that hinders its development, whilst
the former reflects a pragmatic approach that leaves room for law making and
development of the law. In Europe, enforcement of NN rules were undertaken ex-
post, though overall there is less uniform and consistent practice in application as they
are very much driven by cultural and political considerations, rather than technical
ones.
Arguments, however, about opinio juris communis underscore States objective
opinion on the significant outcome of NN in securing Internet access as a human
right, as a measure against the arbitrary interference of hybrid configurations of power
and as a norm for maintaining security and stability in online transactions. In
analogizing NN to several standards of treatment, it is safe to argue that academic
scholars, practitioners and technical experts are setting the boundaries and parameters
for the administration of justice in cyberspace. By imposing NN regulation as: non-
discrimination and transparency requirements, guaranteed levels of QoS, usage-based
billing, and reasonable network management, NN presupposes a pattern of
development that typifies good governance similar to the: FET, NT, MST and MFN.
As such, the standard may require factual determination for the identification of
discrimination based on application-agnostic practices that require treatment of like
traffic alike. So, if opinio juris communis is the determining factor in the emergence
of the doctrine as customary law, then this has been achieved, but as the matter is a
political matter that is yet to be determined legally, the best that could be said about
94
the principle is that it requires the passage of time in order to be crystallized as a valid
norm through implementation and practice.
In conclusion, the standard’s future trajectory reflects one of three considerations
worth conducting future research on: It will either emerge as a viable standard of
treatment of protection similar to that accorded to the fair and equitable Standard of
treatment under international investment law, during which its course of development
will succumb to the different interpretations of what constitutes fair and reasonable
and nondiscriminatory terms at the upstream and downstream markets. The second is
to emerge as a human right governed by human rights laws that tend to focus on
liberty rights rather than the distribution of resources. The third is to strike a balance
between the two notions as reflective of individual and social rights, on the one hand,
and socio-economic policy, on the other, in which it takes into consideration not only
commercial interests and profit maximization, but welfare gains and the reduction of
digital divides. This approach may serve as a gateway for the development of law
altogether, creating opportunities for the cross-fertilization of law from different
sources: commercial and trade law, human rights and investment law. In fact, such a
standard would prove useful in terms of developing understanding, expectations-
setting and safeguarding freedoms. Also, policy-makers are today required to govern
and draft cyber-related policies with no technical backgrounds whatsoever. An
understanding of cyber-related principles: their normative accounts, nuances and
repercussions could allow them to govern cyber relations effectively and judiciously.
So, for those who argue that the principle is nebulous, vague or a naked commitment,
this paper suggests that there is some difficulty with the position.
95
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Akdeniz, Yaman. The Internet, Law and Society. Pearson Education Limited, 2000. Anghie, Antony. Imperialism, Sovereignty and the Making of International Law. New York: Cambridge University Press, 2005. p. 246 Crawford, James. Brownlie's Principles of Public International Law. United Kingdom: Oxford University Press, 2008. p. 22 Dolzer, Rudolf, and Christoph Schreuer. Principles of International Investment Law. 2nd ed. United Kingdom: Oxford University Press, 2012. p. 206-207 Hetcher, Steven. Norms in a Wired World. Cambridge Studies in Philosophy and Law. NY: Cambridge University Press, 2004. 1-6 Lessig, L. Codes and Other Laws of Cyberspace. New York: Basic Books, 1999. p. 20 Loader, B.D (ed.). The Governance of Cyberspace. 1997. p. 6-7 Lopez-Tarruella, Aurelio. Google and the Law: Empirical Approaches to Legal Aspects of Knowledge-Economy Business Models. edited by Information Technology and Law Series. Vol. 22: Springer T.M.C.Asser Press. p. 361 Marsden, Christopher T. Net Neutrality: Towards a Co-Regulatory Solution. London and New York: Bloomsbury, 2010. p. 23-29, 55, 105-211, ———. Regulating the Global Information Society. London and New York: Routledge, 2000. p. 46, 106-114 May, Christopher. The Information Society: A Sceptical View. UK and USA: Polity, 2002. p. 13 Mueller, Milton. "Net Neutrality as a Global Principle for Internet Governance." Internet Governance Project (IGP) (2007). 3-14 Newcombe, Andrew, and Lluis Paradell. Law and Practice of Investment Treaties. Kluwer Law International, 2009. p. 12
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———. Law and Practice of Investment Treaties: Standards of Treatment. Netherlands, Kluwer, 2009. p. 252 Nunziato, Dawn C. Virtual Freedom: Net Neutrality and Free Speech in the Internet Age. California: Stanford University Press, 2009.p. 1-2 Picciotto, Sol. Regulating Global Corporate Capitalism. NY: Cambridge University Press, 2011. p.12-17, 301 Rowland, Diane, and Elizabeth Macdonald. Information Technology Law. 2nd ed. Great Britain: Cavandish Publishing Limited, 1997. p.13 Schewick Van, Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like. Centre for Internet Society (CIS), 2012. p.xii Schwarzenberger, Georg. International Law as Applied by International Law and Tribunals. 3rd ed. Vol. 25, London: Cambridge University Press, 1957. p. 234 Sen, Amartya. Development as Freedom. Oxford University Press, 1999. p. 5-11 Smith, Graham J. Internet Law and Regulation. edited by 4th UK: Sweet & Maxwell, 2007. p.1 Sornarajah, M. The International Law on Foreign Investment. edited by 3rd New York: Cambridge University Press, 2012. p. 333-347 Steiner, Henry J. Political Participation as a Human Right. Harvard Human Rights Yearbook, 1988. p. 77-134
Academic Journals
Bourreau, Marc, and Pinar Dogan. "Services Based Vs. Facility-Based Competition in Local Access Networks." Information Economics and Policy 16, no. 2 (June 11, 2003): p. 3 Clark, David D. "Network Neutrality: Words of Power and 800-Pound Gorillas ". International Journal of Communication 1 (2007): 705. Cooper, Alissa. "How Regulation and Competition Influence Discrimination in Broadband Traffic Management: A Comprehensive Study of Net Neutrality in the United States and the United Kingdom." 2013. p. 26, 44, 151 Economides, Nicholas, and Tag Joacim. Network Neutrality and Network Management Regulation: Quality of Service, Price Discrimination, Exclusive Contracts. NET Institute, 2011. p. 3-8 Faulhaber, and David J. Farber. "The Open Internet: A Customer-Centric Framework." AT&T. p. 1
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Freeman, Jody. "Extending Public Law Norms through Privatisation." Harvard Law Review 116, no. 5 (2003). p. 1286, 1315 Frieden, Robert M. "Universal Service: When Technologies Converge and Regulatory Models Diverge." Harvard Journal of Law and Technology 13, no. 3 (2000). p. 396 Gilroy, Angele A. "Access to Broadband Networks: The Net Neutrality Debate." USA, 2014. p. 4-7 Hornbeck, Stanley. "The Most Favoured Nation Clause." American Journal of International Law 3, no. 4 (1909). p. 395-403 Kelly, Patrick J. "The Twilight of Customary International Law." Virginia Journal of International Law, no. 2 (2000): 449. Kostyska, Maria, and Ignacio Torterola. "International Arbitration Case Law." Mckelvey, Fenwick. "Ends and Ways: The Algorithmic Politics of Network Neutrality." Global Media Journal (Canadian Edition) 3, no. 1 (2010). p. 53-55 Moll, Marita, and Leslie R Shade. "Telecommunication Picks up Speed on the Free (Market) Way." The Harper Record (2008). p. 405 Noam, E.M. "Beyond Liberalization Ii: The Impending Doom of Common Carriage." Telecommunications Policy 18, no. 6 (1994): 435. Paparinskis, Martins. "Mfn Clauses and International Dispute Settlement: Moving Beyond Maffezini and Plama?". ICSID Review: Foreign Investment Law Journal 26 (2011). p. 20-28 Powell, Alison, and Alissa Cooper. "Net Neutrality Discourse: Comparing Advocacy and Regulatory Arguments in the United States and the United Kingdom." The Information Society 27, no. 5 (2013). p. 2-16, 49 Read, Darren. "Net Neutrality and the Eu Electronic Communications Regulatory Framework." International Journal of Law and Information Technology 20, no. 1 (2012). p. 49-59 Seng, Daniel. "Evidential Issues from Pre-Action Discoveries: Odex Ptd, Ltd, V Pacific Internet Ltd.". Digital Evidence and Electronic Signature Law Review 6 (2009). p. 25-32
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Sidak, J. Gregory. "A Consumer Welfare Approach to Network Neutrality Regulation of the Internet." Journal of Competition Law and Economics 2, no. 3 (2006): 349 ———. "A Consumer Welfare Approach to Network Neutrality Regulation of the Internet." Journal of Competition Law and Economics 2, no. 3 (2006):p. 350 Sornarajah, M. The International Law on Foreign Investment. edited by 3rd New York: Cambridge University Press, 2012. p. 333-347 Speta, James B. "A Common Carrier Approach to Internet Interconnection.". Federal Communications Law Journal 54 (2002): 253 Subedi, S. International Investment Law. Section D: The Case-Law on the Treatment of Foreign Investment. University of London Press, 2005. p. 6 Taniwaki, Yasu. "Emerging Broadband Market and the Relevant Policy Agenda in Japan." "The Bonn Ministerial Declaration." 1997. p. 25-31 Van Schewick, Barbera. "Opening Statement at the Fcc's Workshop on Approaches to Preserving the Open Internet." http://www.law.standford.edu/diplay/images/dynamic/publications_pdf. ———. "Towards an Economic Framework for Network Neutrality Regulation." Journal on Telecommunications & High Technology Law 5 (2007): 332. Wang, Xiaowei. "Time to Think About the Human Rights Approach to Internet Access." Journal of Politics and Law (2013). p. 1-2 Weiser, Philip. "The Next Frontier of Net Neutrality." Administrative Law Review 60 (2008): 274-76. Werbach, Kevin. "A Layers Model for Internet Policy." Journal on Telecommunications & High Technology Law 1 (2002): 37. Wu, Timothy. "Network Neutrality, Broadband Discrimination." Journal of Telecommunications and Hight Technology Law 2 (2003). p.167-168,145 Wu, Timothy S. "Cyberspace Sovereignty: The Internet and the International System." Harvard Journal of Law and Technology 3, no. 10 (1997): p. 657-662 Wu, Timothy S. "Cyberspace Sovereignty: The Internet and the International System." Harvard Journal of Law and Technology, no. 10 (1997): p. 648-49.
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Wu, Timothy, and Christopher S. Yoo. "Keeping the Internet Neutral? Timothy Wu and Christopher Yoo Debate." Federal Communications Law Journal 59, no. 3 (2007). p. 574-592 Yoo, Christopher S. "Beyond Network Neutrality." Harvard Journal of Law & Technology 19, no. 1 (2005). p. 15-16, 3 ———. "Is There a Role for Common Carriage in an Internet-Based World?". Houston Law Review 51, no. 2 (2013): 546. Zhu, Kai. "Bringing Neutrality to Network Neutrality." Berkeley Technology Law Journal 22, no. 1 (2007): 615.
Public and NGO Reports And Declarations
Assembly, UN General. "Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue." 1, 2011. Belli, Luca. "Protecting Human Rights through Network Neutrality and Safeguarding the Open Internet." 2013. Commission, European. "Compact Principles for Internet Policy and Internet Governance." 2014. ———. "G8 Deauville Declaration (2011) Section Ii Internet Para. 5." European Commission, 2011. Commission, Federal Communications. "The Fcc Principles." edited by The Federal Communications Commission (FCC), 2004. Council, OECD. "Recommendations on Internet Policy Making." 2011. Europe, Council of. "Declaration of the Committee of Ministers on Network Neutrality, Para 4." Europe: Council of Europe, 2010. ———. "Internet Governance Principles." 2010. FCC. "Report and Order in the Manner of Preserving the Open Internet Broadband Industry Practices." The Federal Communications Commission, 2010.
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Forum, Internet Governance. "Workshop (58) on Network Neutrality:Examine the Issues and Implications for Development." 20, Federal Communication Commission Record. " consent Decree, Madison River Communications, Llc (4296) ". USA: Federal Communications Commission, 2005. 23, Federal Communications Commission Record. "Comcast Corporation for Secretly Degrading Peer-to-Peer Applications: Memorandum Opinion and Order." 13028-94. USA: FCC, 2008. (FCC), Federal Communications Commission. "Notice of Proposed Rule Making in the Matter of Preserving the Open Internet." USA: FCC, 2009. ———. "Notice of Proposed Rulemaking." 42. Washington, D.C: FCC, 2009. (FCC), The Federal Communications Commission. "The Open Internet Order:25 F.C.C.R. 17905 ", edited by FCCR., 2010. House, Chatham. "Global Commission on Internet Governance." The Royal Institute of International Affairs, http://www.chathamhouse.org/about/structure/international-security-department/global-commission-internet-governance-project. P.1 (IGF), Internet Governance Forum. "Workshop 58: Net Neutrality- Examining the Issues and Implications for Development." IGF, http://www.intgovforum.org/cms/2008-igf-hyderabad/event-reports/72-workshops-17032/370-workshop-58-network-neutrality-examining-the-issues-and-implications-for-development-97503340. InfoDev, ITU. "Ict Regulation Toolkit: Universal Access and Universal Service." P.7 ITU. "Report from the Working Group on Internet Governance." ———. "The World in 2013: Ict Facts and Statistics-Itu Fact Sheet." ———. "World Summit on the Information Society: The Tunis Agenda for the Information Society." Geneva, 2005. ______. "World Telecommunication Development Report" Geneva, 1998 Neutrality, Commission Declaration on Net. "Directive 2009/140/Ec European Commission Declaration on Net Neutrality." EU: European Commission, 2009. Ofcom. "Traffic Management and Net Neutrality." United Kingdom: Ofcom, 2010a. P.7
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Parliament, European. "Resolution of 17 November 2011 on the Open Internet and Net Neutrality in Europe." In P7_TA (2011)0511, 2011. Parliment, European. "Network Neutrality: Challenges and Responses in the Eu and the U.S." edited by Directorate General for Internal Policies, p. 48, 2011. Secretariate, Commonwealth. "Law in Cyberspace." 27: Malborough House, 2001. The Bonn Ministerial Declaration." 1997. Toolkit, Internet Society International. "Tools for Unravelling the Net Neutrality/Open Internet Working Debate." 2-10, 2010. UNCTAD. "Most-Favoured Nation Treatment." In The Pink Series. UNCTAD website, 2010. ———. "National Treatment." In UNCTAD Series: On Issues in International Investment Agreement. New York and Geneva, 1999. Union, International Telecommunication. "Final Acts of the World Conference on International Telecommunications 2012." Geneva: ITU, 2013. WSIS. "The Declaration of Principles, Building the Information Society: A Global Challenge in the Millennium World." 2003.
Cases Comcast V. Fcc, 600 F. 3rd 642 U.S. Court of Appeals for the District of Columbia 2010. Interstate Commerce Communication V B&O R.R. Co., U.S (1892), 145 U.S. 263, 275 ((1892)). K.U. V Finland Application, no. 2872/02, ECtHR 2nd of December 2008. Madison River Comms., Llc V Fcc, 20 F.C.C.R. 4295, 4297 (2005). Maffezini V Spain, ICSID Review Foreign Investment Law Journal ARB/97/7 (2000). Odex Pte Ltd V. Pacific Internet Ltd, 3 SLR 18 (2008).
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Turner Broadcasting System Inc. V F.C.C, 512 U.S.622,657 (1994). Uzun V Germany, no. 35623/05, ECtHR 2010 Press Releases And Website Documents Cerf, Vinton G. "Internet access is not a human right." New York Times 4 (2012): 55. http://kean.edu/~jkeil/Welcome_files/Internet%20Access%20Not%20a%20Human%20Right%20NYT.pdf Crawford, Suzan. "The Wire Next Time." The New York Times (2014) http://www.nytimes.com/2014/04/28/opinion/the-wire-next-time.html?_r=1. Greeley, Brendan. "The U.S Gives up Its Control of Free Speech Internet." Bloomberg Businessweek (Technology) (2014) http://www.businessweek.com/articles/2014-03-17/the-u-dot-s-dot-ends-control-of-icann-gives-up-backing-of-the-free-speech-internet. House, Chatham. "Global Commission on Internet Governance." The Royal Institute of International Affairs (2014) http://www.chathamhouse.org/about/structure/international-security-department/global-commission-internet-governance-project. Lee, Tim Berners. "Net Neutrality: This Is Serious." DIG, http://dig.csail.mit.edu/breadcrumbs/node/144. Reuters, Al Jazeera and. "Net Neutrality Wins in Brazil's 'Internet Constitution'." (2014). Van Schewick, Barbera. "Opening Statement at the Fcc's Workshop on Approaches to Preserving the Open Internet." http://www.law.standford.edu/diplay/images/dynamic/publications_pdf. Wheeler, Tom. "Net Effects: The Past, Present and Future Impact of Our Network." Federal Communications Commission (FCC), http://www.fcc.gov/blog/net-effects-past-present-future-impact-our-networks-history-challenges-and-opportunities.
